Fall 2012, Property I, Professor Benjamin Depoorter
Ownership by Capture
General rule of capture:
Intent to Possess,
Capacity to acquire dominion and control
Actual possession (first in time)
Esstential rule in property law: Physical possession is the presumption of title and needs to be respected by other individuals.
Capture of wild animals: Mere pursuit is insufficient to establish occupancy
Wounded or trapped animals: If a wild animal has been mortally wounded or trapped so that capture is practically certain, it is treated as captured.
Escaped animals: The original captor loses possession once a previously captured animal escapes. Original captor no longer has possession and it becomes wild again.
Ratione soli: “according to the soil” the owner of land has possession of wild animals on the land. Under ratione soli, a land-owner is said to have possession, albeit constructive possession, of the wild animals on their land. Landowners are the prior possessors of any animals ferae naturae on their land.
· Labor theory of value, John Locke
Premise 1: Locke believed that every man has property in his own person and that he has a right in what he produces.
Premise 2: Everything in nature is up for grabs.
Conclusion: By taking something from nature and modifying it, his labor becomes combined with that thing, and a property right is vested in it.
· Fugitive Resources
Analogies to the capture of wild animals have been made with “fugitive” resources being reduced to possession for the first time. (example: oil)
· Property rights in wild animals: Pierson v. Post; Ghen v. Rich; Keeble v. Hickeringill
Pierson v. Post
Rule: Property in animals is acquired by occupancy only not by mere virtue of pursuit and imminent capture. The condition of occupancy is established when a hunter continues their pursuit after inflicting a mortal wound on their prey.
Policy: the above rule will provide not only certainty, but will also preserve peace and order in society. Occupancy is clear.
Dissent’s Standard: Occupancy consists of a reasonable prospect of taking the object of his discovery with an intention of converting it to his own use. Pre-possessory interest
Popov v. Hayashi
· Issue: Did Popov have possession of the ball? What is possession? What is ownership?
· Rule: When an actor undertakes significant but incomplete steps towards full control (to achieve possession) and is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest, a qualified right of possession.
· Analysis: Possession can be established before full control. Establishing possession at an earlier time stops persons from making duplicative investments. Possession is context dependent, want to protect investments people have made. Ex-ante effects of rules=don’t want to encourage illegal behavior. Hayashi had occupancy and “clean hands” that is why ball was auctioned and split.
Ghen v. Rich
o 3 types of relationships between custom and law
· Custom a source of law (inspiration to judges)
· Custom as a substitute for law (people rely on custom instead of law)
· Custom in opposition to law (violates legal rules)
· Rule: Yes. The court may look to custom within an industry to determine law if the custom is widely accepted. When all that is practicable is done in order to secure an animal, it becomes the property of the hunter, who has exercised sufficient personal control over the wild animal.
· Analysis: First possession is context dependent. Rule is: necessary to survival of whaling industry, already accepted by industry, Allows maximization, only affects small community, enforces good behavior, Creates incentive to continue whaling. No one would whale if they could not reap fruits of their labor.
Keeble v. Hickeringill
· Issue: Can a Party recover against another for interference with their lawful activity (profession/livelihood) on their property?
· Rule: Where a malicious act is undertook to interfere with a party’s occupation, profession, or livelihood on their land then there is an action for recovery. (malicious interference with trade)
Acquistion by Discovery
o Property rights are determined by the person that holds the power
Johnson v. M’Intosh
· Rule: The government has the exclusive right to purchase land from the Indian tribes, or forcibly take it from them.
· Analysis: Discovery of Indian lands gave discoverers absolute dominion of the title of land and Indians were left with only right of occupancy. Indians were incapable of transferring absolute title to others. Title vested in discoverers by way of the crowns of Europe. Title then vested in U.S. Govt. after the revolution.
Ownership by Find
· General Principle: An owner of property does not lose title by losing the property. The owner’s rights persist even though the article has been lost or mislaid.
General Rule: A finder has rights superior to everyone but the true owner
Information forcing rules
· Real Property: property concerning land
o Ejectment: action for possession-similar to replevin
o Trespass: action for damages-similar to trover
· Personal Property (Chattels): movable goods
o Replevin: action for possession
o Trover: action for damages
Bailment: the rightful possession of goods by a person (the bailee) who is not the owner.
· Bailor: Owner of the goods
· Bailee: person who rightfully possesses goods which are not his, finder, person holding property in trust for another party
· Four Types of Bailment
Voluntary Bailment: Bailor gives possession to the bailee
Mutually advantageous bailment: Bailment that is advantageous for both bailor and bailee (example: valet parking; coat check)
Standard duty of care for bailee: ordinary diligence
Bailment to sole benefit of bailor: example bailor asks bailee to look after property for a moment
Standard duty of care for bailee: bailee is only liable in cases of gross negligence
Bailment to sole benefit of bailee: example bailee asks to borrow bailor’s car
Standard duty of care for bailee: extraordinary care
Involuntary Bailment: owner not aware
Bailment Applied to Found Goods: the bailment is involuntary from the standpoint of the owner but not from that of the finder, who has, after all, chosen to take possession: by doing so, the finder assumes the obligations of a bailee.
Standard of care for bailee: slight care, nothing out of orinary
· Theft/Conversion: Wrongful possession of another’s property
· Four Categories/Classifications of Found Property
· Primary goal of finders laws is for true owners to get it back; encourage finders to disclose information
· Abandoned: owner intends to abandon the property and has voluntarily relinquished all right, title, and interest in the property
o Mindset: Owner doesn’t want it
o Belongs to: Finder against all other, including former owner
· Lost: owner unintentionally and involuntarily parts with possession and does not know where it is
o Mindset: unaware
o Belongs to: finder of the property against all others except for true owner and prior finders
§ Rule of Prior Possession: prior possessor prevails over a subsequent possessor. Only applies if the finder obtained the property legally
Rule: One who takes property from the possession of another can only rebut their presumption of title by showing a superior title
Minority Rule: the rule of prior possession is said to be explicitly invoked only in support of honest claimant Object is found in a public place
· Mislaid: property put voluntarily and intentionally in a certain place by the owner, who overlooks or forgets it
o Mindset: knew was putting it somewhere purposefully but forgot
o Belongs to: Owner of the premises upon which it was found
o Finder: has no rights to property
Now often treated as mislaid
· Treasure Trove: coins or currency concealed by owner
o Element of antiquity
o Must have been hidden or concealed for such a length of time that the owner is probably dead or undiscoverable
Armory v. Delamireie (Lost)
Lost Ring. Rule: A finder does not have an absolute property right in an item found, however, he does have a superior right to all but the original owner.
McAvoy v. Medina (Mislaid)
Rule: The finder does not have a right to possession. The owner of the premises on which the property was found has the right to possession.
Holding: Since the pocket book was voluntarily placed upon the table, it should be treated
es of books about bookkeeping. Defendant had used books to create a book on a very similar system.
· Issue: Can one obtain copyright in an idea or simply in the expression?
· Rule: No copyright in the idea, only in the expression.
· Analysis: Could have obtained a patent to the invention of the system of bookkeeping.
· Ornamental designs and pictorial illustrations-copyright of these objects is entire form.
Anderson v. Stallone (Derivative Works)
· Issue: Where is the copyright? Is there copyright in the Rocky character? Can an infringer of copyright get copyright for the non-infringing portions of his unauthorized derivative work?
· Rule: There is a copyright in Rocky character. The holder of a copyright has the exclusive right to make derivative works which are based upon his own copyrighted works. No part of an infringing derivative work could be granted copyright protection. Unauthorized derivative work.
Three Boys Music Corp. v. Michael Bolton (proof of access; subconscious copying)
· Facts: Isley Brothers claimed that Bolton’s song love is a wonderful thing infringed on their song of the same name.
· Issue: Was there copying? If so, was it copyright infringement? Was it improper appropriation.
· Rule: If there is no direct evidence of copying, P must show that D had “access” to P’s work and that the two works are “substantially similar”.
· Analysis: Plaintiff argument widespread dissemination and subconscious copying
o Reasonable access
o Substantial similarity-proff is satisfied by 2 part test
§ Extrinsic test-requires P identify concrete technical elements of similarity based on objective criteria(expert testimony)
§ Intrinsic test-requires that an ordinary reasonable person would find the total concept and feel of the works to be substantially similar
o Independent creation-By establishing reasonable access and substantial similarity burden shifts to defendant to prove independent creation
o Inverse ratio rule-requires a lower standard of proof of substantial similarity when a high degree of access is shown
o Attribution of profits-plaintiff is only allowed to recover those profits that are attributable to infringement
Metro-Goldwyn v. Grokster (inducement of infringement)
· Issue: Under what circumstances is the distributor of a product capable of both lawful and unlawful use liable for acts of copyright infringement by third parties?
· Rule: One who distributes a device with the object of promoting its use to infringe copyright, as shown by their clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
Patents- a limited monopoly conferred on the invention or discovery of any new or useful machine or process that is novel and non-obvious.
· A person who invents or discovers any new and useful process, machine or other invention and meets stat. requirements can receive a patent which is effective for 20 years from the application date
· Making selling, using , or exporting the patented invention are prohibited
· Three requirements to obtain a patent
o Novel-person is first to invent
o Non-obvious-must be a significant departure from prior art
§ Prior art=earlier inventions in that general field
§ Would a person with ordinary kill in the art have thought that the invention was obvious
§ Obviouness inquiry looks at:
· Scope and content of prior art
· Differences between this invention and prior art
· Level of ordinary skill in the pertinent