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Property I
University of Denver School of Law
Cheever, Federico

I. First possession- acquisition of property by discovery, capture, creation
a.       Bundle of Rights
                          i.      Use it, sell it, waste it, gift it, exclusion
b.      Labor Theory (Locke): Because we have a right to our own person, the work that we do with our own person creates a process by which mixture of work and property equates to an individual property right. This is a way in which things that were not property become property.
c.       First in Time First in Right – First come first served. Finders keepers. Must get to property and posses it. Right of possession. Possession is key when there has not been a prior possessor. (See Bailments)
d.      Sovereignty v. Property – Intricate relationship between sovereignty and property. Property is only property when a sovereign stands behind those rights.
e.       Fairness, efficiency, certainty – Certainty, efficiency and fairness must come into balance in order to determine property rights. (Pierson – Certainty won over fairness and efficiency, Rich – Efficiency won over fairness and certainty, Johnson – Certainty and efficiency won over fairness)
f.       Aims of property – Discourage trespassing, encourage peaceful settlement of dispute, and discourage vigilantism
            B. DISCOVERY
Johnson v. M’Intosh
–          initial distribution of property in the US
–          justifications:
o       person who claims property is the owner
o       labor theory
§         if you mixed your labor with the thing to make it is your property
Title given to first “civilized” occupiers of land based on “first in time” principle; discovery vests title; justified by Locke (nomadic Indians didn’t blend labor with land) and English tradition; right of occupancy is granted to conquered people, but not right of title to dispose of land [conflict between two people with title to land, one from govt land grant the other purchased from Indians; held, Indians did not have title and therefore could not covey it]  
Mere pursuit does not give rights to the animal. The one who captures the animal gets it. It encourages the pursuer to capture it as quickly as possible. The rule of capture is a killing machine. Directly follows the first in time rule.
A.    You must have actual possession, or else constructive possession by inflicting a mortal wound; pursuit does not vest title. Pierson v. Post (1805) [one hunter was pursuing the fox when another hunter shot it; hunter who shot the fox had possession]                                                               i.      “mortal wound” approach: (1) is objectively likely to deprive the fox of his natural liberty; (2) shows a subjective “manifest intention” to seize the animal (i.e., not just for the enjoyment of the chase)
                                                            ii.      “socially useful enterprise”—majority accepts that killing foxes is a socially useful enterprise; dissent elaborates that it protects activities of chicken farmers (wants to protect pursuit as possession to encourage more hunting; intruder should not gain from labor of first person)
–          wild animals- many forms
–          fish- physical control
–          groundwater- control based on custom
à default rule—constructive possession
Other reasoning: keeps the peace, decreases litigation (the end of the hunt is an objective measure whereas the beginning is subjective), clear and easy to administer
            1. FIRST IN TIME
a.       Ownership is title, legal right to property
b.      Possession is proved by showing physical control and the intent to exclude.
–          Possession is easier to prove than ownership
c.       Constructive Possession: Own the land then own the wild animals on the land
à  a person is in constructive possession when the law treats him as if he were in possession although he is not or is unaware of it.
–          For wild animals- according to custom
d.      Why the law protects possessors:
–          Possession is an efficient way to prove ownership
–          Protecting possession preserves peace and order by preventing a stronger person from ousting a possessor.
–          Protecting possession facilitates trade
–          Gives effect to the expectations of a person who has asserted a right in a thing
–          In the case of capture of wild animals, it rewards persons for making a useful item available to society.
–          Possession is an easy and efficient way of allocating resources
à The party with superior title has a claim against all who have an inferior title.
            – efficient
            – resolve disputes in front of the court
– Rule of increase: if a domesticated female animal goes onto a neighbor’s property, take up with a neighbor’s animal, baby belongs to female animal’s owner.
Pierson v. Post
The mere hunting of a wild animal does not vest titled of that animal in the pursuer; “actual bodily seizure,” “killing,” or “mortal wounding” is sufficient to establish both possession and title to it.
Ghen v. Rich
Chance finder of a whale carcass has no rights to it. The killer of the whale has the rights
Rule: When a hunter apprehends an animal in accordance with custom, title to a wild animal is acquired.
Custom reco

of literary, musical, dramatic, and choreographic works . . . to perform the copyrighted work publicly . . .(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission
Exclusive rights- this is what it covers
§ 107. Limitations on exclusive rights: Fair useNotwithstanding the provisions of sections 106 . .. the fair use of a copyrighted work, including such use by reproduction in copies. . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. . . . .
This is the only exception we covered
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. . .
            A. Intellectual Property
International News Service v. Associated Press
although the news is common property, the news put out by AP is blended with their labor and is sold as a good for money (creates quasi-property); the test is not the right of INS against the public but as against AP as their competitor in the sale of the good.
Cheney Bros. v. Doris Silk Corp.
In the absence of some recognized right at common law or under statute, a man’s property is limited to the chattels which embody his invention. Other may imitate these at their pleasure.” [imitation of designs on clothing]  
Smith v. Chanel Inc.
imitation breeds competition which properly adjusts the price society must pay for a given commodity; the expenditure of money to create demand does not create a legally protected interest in the public’s desire for the product. [imitation of scent advertised as equivalent of Chanel no. 5]  
Nichols v. Universal Pictures Corp.
Diamond v. Chakrabarty