Property I Outline

Milot property I fall 2009 – Property Cases and Materials 2nd Ed. Smith
1) THE EMERGENCE OF PROPERTY RIGHTS
a) Property is the ownership of things, both tangible and intangible
b) Property Rights as a Bundle of Sticks
i) A property owner may hold all the sticks, or just some of them – making property rights less than absolute.
(1) The Sticks:
(a) Right to Possess
(b) Right to Use
(c) Right to Manage
(d) Right to the Income
(e) Right to Consume
(f) Right to Destroy
(g) Right to Modify
(h) Right to Alienate
c) The Theories of Property
i) Occupation (Maine)
(1) Taking possession of that which has no owner (res nullius) or has never had an owner.
(2) Wild animals, jewels from the earth, undiscovered land.
(3) First person to take possession gets ownership.
(4) Natural rights approach – because things are the way they are, people are going to take property as their own
(a) In ancient times little focus on individuals; ownership in terms of families
ii) Natural Law (Aquinas)
(1) Property rights are necessary because they create incentives to take care of the property, creating more orderly and peaceful societies
(2) Should occur individually because individuals are more careful with individual than community property
iii) Labor (Locke)
(1) Property becomes a man’s when he adds something to it which was not there before
(2) Acorns: picking them up (putting labor into something) allows you to assert a right in them
(3) There is limit where you cannot own more than you reasonably need
(4) Seems better fitted to old systems where money was no as common
iv) Utilitarian (Bentham)
(1) Goal of assignation of property is to maximize overall social utility
(2) Utility is maximized by upholding expectations of property rights
(3) Cohen’s definition of property – To the world: keep off xx unless you have my permission, which I may grant or withhold. (Signed personal citizen and endorsed by the state)
(a) Question of de facto property rights not endorsed by state but seeming to be property (parking pace cleared of snow
v) Economic (Smith)
(1) Goal of property is to allow transfer to those who have highest value.
(2) Invsible hand – by promoting their own interests an individual unintentionally benefits society
vi) Tragedy of the Commons (Hardin)
(1) Multiple owners have property rights, cannot optimize use or control
(2) Leads to overconsumption
(a) Often a concern with cultural property.
(3) Promotes individual ownership
vii) Tragedy of the Anti-Commons (Heller)
(1) Multiples owners have some sticks from the bundle, such as the right to exclude, but not the right to use
(2) Leads to underutilization
(3) Promotes individual ownership
viii) Personhood (Radin)
(1) right to personal property based upon personal embodiment or self-constitution in terms of “things”
(a) Personal property is what helps define someone’s “personhood”
(i) External property is personal property if it cannot be rectified by any monetary payment
(ii) does not include fungible property which has no worth greater than its monetary value
(b) ex. Voice, likeness, image
(2) with personal property one should have broad liberty with respect to control over the “thing”
(a) more closely the thing related to personhood, stronger the entitlement
2) THE RIGHT OF PUBLICITY
a) individuals right to capitalize upon the commercial exploitation of his name and likeness and to prevent others from doing so without his consent
i) Freestanding right separate from the right of privacy (right to be left alone)
(1) Right of publicity granted only to celebrities
(2) Celebrities might not have a right to privacy
ii) If used during life for commercial exploitation, rights of publicity may be descendible
(1) Question of how long after death right to publicity lasts
(2) Elvis Presley Int’l Memorial Foundation v. Crowell: Corporation was barred from using Elvis’ name, as the rights had passed through his estate
b) Protects intangible qualities of self (personhood)
i) Midler v. Ford Motor Company: the unauthorized use of a sound-alike in a commercial violated Midler’s right to publicity
ii) Motschenbacher v. RJ Reynolds Tobacco, Co.: race driver’s car and image were used in a commercial without authorization, found to have invaded his rights
iii) Courts will not protect the publicity interests of infamous characters, such as Al Capone and Charles Manson, because they don’t want to encourage personal gain from reprehensible behaviors
c) The First Amendment will trump any right of publicity when a celebrity’s likeness is used in an expressive manner, rather than commercial.
i) Court must weight the interests of celebrity against an artists freedom of expression
ii) ETW v. Jireh Publishing, Inc.: artist Rick Rush was allowed to use Tiger Woods’ image in a painting of the Masters because it had substantial transformative elements.
3) CULTURAL PROPERTY
a) Property with some cultural significance that belongs to society as a whole but cannot be reduced to private ownership
i) Usually, specifically designated by each State as being of importance for archaeology, prehistory, literature, art or science.
(1) Generally, cultural property only exists if protected by statutes
ii) The State must prove they have a better claim than the current possessor does
(1) possession gives a basic case for ownership, and while it is rebuttable it puts the burden of proof upon others not in possession
(a) encourages the sharing of documents
(b) promotes stability and settled expectations
(c) reduces litigation
(2) Wilcox v. Stroup: since the state had insufficient evidence to overcome the presumption of ownership created by long possession of the gubernatorial papers
iii) National patrimony laws – laws enacted by a country to protect cultural property
(1) United states recognizes other countries patrimony laws
(2) United States v. Schultz: stolen Egyptian antiquities were returned to their country of origin because of an Egyptian law prohibiting sale and personal ownership
4) Moral rights
a) Rights that exten