PROPERTY SCHWEITZER SPRING 2015
What are Property Rights?
Property is an abstraction that refers to the rights or relationships among people with respect to things. Property rights are a collection of rights or bundle of rights. The 4 most important being:
The right to possess
The right to use
The right to exclude
The right to transfer
ACQUISITION OF PROPERTY
First Possession: The fundamental property rule is: The first person to take possession of an unowned thing owns it
Acquisition by Discovery
John Locke: “In the beginning all the world was America”
: This is when a person acquires title to a piece of land by discovering it. Once discovered the person must have constructive (cultivation, improvement) use of the land in order for it to become his.
Johnson v. M’intosh à “Conquest gives a title which the conqueror cannot deny”
: Discovery gave title to the European nations which passed title to the states or US.
: Native Americans were not regarded as in prior possession of America because they were hunters who moved their villages, unlike Europeans who built permanent homes and took possession of tracts of land.
Native Americans only had right to occupancy, which Americans can take away at any time
Americans possessed chain of title, which traces back to the Royal Governor (Ex. Deed)
Discovery vs. Conquest
– the sighting or finding of unknown o uncharted territory, accompanied by a landing and symbolic taking of possession
Res/Terra Nullius = A thing or territory belonging to no one
– taking of possession of enemy territory through force
Acquisition by Capture
: If a wild animal is captured (vs. mere pursuit), it belongs to the captor
Pierson v. Post à Mere pursuit of an animal does not vest title to the pursuer, unless the animal is mortally wounded or otherwise deprived of its natural liberty (trapped)
:
– Society only rewards the captor, and not pursuer, because it promotes competition and more effective means of capture, resulting in more wild animals being captured
Ease of Administration – Rewarding capture (an objective act) is easier to administer. It promotes certainty and efficient administration because it is easier to determine a captor than pursuer.
Industry/Custom Standard
: Industry standard can be used to determine property rights when:
It is limited to this industry
It is unlikely to disturb the general understanding of rights in society
Failure to do so could destroy the entire industry
: This custom advanced the killing of whales because the killer ship could be off looking for other whales without waiting for the whale to rise.
Keeble v. Hickeringll à A non-competitor may not maliciously interfere or prevent another from capturing wild animals in the pursuit of his trade.
:
Ferae Naturae = Wild animal
Ratione Soli = An owner of land has constructive possession (dominion and control over an object, though not physical possession) of wild animals on his land
Animus Revertendi = Habit of return
Captured wild animal, which was tamed (developed habit of return) continues to belong to the captor when it roams at large
à A captured wild animal which has no animus revertendi, and escapes, is subject to capture by another because captor loses possession of the animal.
Fugitive Resources:
Oil and Gas è Landowner can extract all the oil and gas under his land, even if its origin is from a neighboring land (analogous to wild animals).
Water è (Eastern) Surface owner has the right to pump water either for his own or commercial use because water is plentiful. (Western) A surface owner may capture percolating ground water only to the extent that the use of water is reasonable because water is scarce.
:
Communal – Right which can be exercised by all members of the community
Private – Community recognizes the right of the owner to exclude others from exercising the owner’s private rights
State – State m
escribe the invention in sufficient detail that “one of ordinary skill in the art” would be able to use the invention
= Chief purpose is to prevent consumer confusion about the origin of the goods or service.
There are 3 requirements for trademark protection:
Distinctiveness – mark distinguishes the goods or service of one person from those of another
Non-functionality – if an aspect of a good is exclusively function, then it cannot be protected by trademark law (under patent instead)
First use in trade – exclusive right to make depends on the first actual use in commerce
Right to Publicity: Forbids unauthorized commercial use of one’s name, likeness, and other aspects of one’s identity
White v. Samsung à Ct. held that even though there was no intent to deceive, the use of an imitation (not likeness) of a celebrity for commercial profit infringes her right of publicity
Right in Body Parts
Moore v. Regents à Ct. held that a man did not have property right in his spleen following its removal from his body by doctors who made it into a patented cell line of great commercial value
Conversion = A tort that protects against interference with possessory and ownership interests in personal property
: Body parts cannot be converted
Right to Exclude, Abandon and Destroy
Right To Exclude
General Rule: Private landowner has the right to exclude others from his land
: Where there is a matter of public policy (i.e. ensure the health and welfare of society), a landowner cannot exclude charity and government workers in entering his property
