I. First Possession: Acquisition of Property
A. Methods of Acquisition:
1. Discovery & Conquest: Methods of acquiring territory in international law. Discovery is the sighting or finding of previously unknown or uncharted territory, frequently accomplished through a symbolic act such as a landing. Conquest is the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.
a. Underlying Theories:
i. Principle of First in Time: The notion that discovering or possessing a thing first justifies ownership rights. Under this theory, a discovery merits full rights to occupancy and possession.
ii. The Labor Theory: A person must apply labor to something before true ownership occurs. Under this theory, discovery gives the right of occupancy, but not title.
2. Capture: A wild animal is in a state of nature. In contrast to the first in time principle, occupation or possession of a wild animal requires more than a sighting or even pursuit. One must deprive the animal of its liberty or bring it within control to have possession.
3. Creation: “Any expenditure of mental of physical effort, as a result of which there is created an entity, whether tangible or intangible, vests in the person who brought the entity into being, a propriety right to the commercial exploitation of that entity . . .”
a. Intellectual Property: The law will protect a person’s invention, but the idea or concept is free for imitation. Imitation is the lifeblood of competition. It’s lowers prices and is good for customers.
i. The purpose behind copyright, patent, and trademarks is to create a limited monopoly, which promotes activity and invention, but is limited to advance competition.
ii. Patents are granted for novel, useful, and nonobvious process or products. They last for 20 years from the date of the original application. When expired, the process or product in question enters the public domain where it can be exploited by anyone.
iii. Copyrights protect the expression of ideas in books, articles, music, art, etc. A copyright lasts for 70 years after the creator’s death
iv. Trademarks are words and symbols indicating the source of a product or service; owners of marks are protected against use of similar marks when such use would result in confusion. The purpose is to aid consumers and businesses.
(A) There can be a protectable property interest in news. The facts of the news are not protected, but when one invests time, labor, skill, and money into salable product, it deserves protection from competitors. Probably can only be applied in special circumstances. (INS v. AP)
(B) A business does not have a protectable interest in particular aesthetic patterns. Competitors are free to imitate them. (Cheney Brothers v. Doris Silk Corp.)
(C) A business may use the name of a competitor in an advertisement (e.g. for comparison). It may be taking a “free ride” on a competitor’s good name, but it’s also providing a service to customers by offering comparable goods at a lower price. (Smith v. Chanel)
(D) A large expenditure of money in advertising a product does not create a right. (Smith v. Chanel)
(E) Protection of literary property cannot be limited to a direction appropriation of the text. However, general ideas, themes, and character archetypes are not protectable. (Nichols v. Universal Pictures Corp.)
(F) A living organism can be patented if it is invented or engineered. (Diamond v. Chakabarty)
(G) The common law right of publicity gives a person exclusive right to their name, likeness signature and voice. Using an image or likeness in parody, which may remind the public of a certain celebrity without implying an actual endorsement, is not a violation of this right. (White v. Samsung)
(H) To what extent, if any, is the proprietor if file- sharing software responsible for the downloading of
nder has rights against all but the rightful owner
iii. Abandoned: The finder has full entitlement
2. Adverse Possession: There are several competing theories underlying adverse possession. First, it may be to punish people who have sat on their rights for a certain amount of time. Second, it could be primarily to reward occupiers based on the idea that using something long enough gives you a certain right that can’t be taken away. Lastly, some think the point is merely to keep all titles straight.
a. Adverse possession is generally dictated by statutory law. For example, a statute may require that an occupier without color title (an invalid title) have actual possession for the statutory time period. Further, actual possession may require by (1) that the property be protected by a substantial inclosure, and (2) that the property be cultivated and improved. In Valkenburgh v. Lutz, the court required a full inclosure, significant improvement, and nearly full cultivation of the land.
b. The general rule of law in most jurisdictions requires the following:
i. Actual entry giving exclusive possession that is
ii. Open and notorious
iii. Adverse and under a claim of right, and
iv. Continuous for the statutory period
(A) The taking of land does not require a hostile intent, only intent to take possession of the land. Thus, a taking by mistake can meet the intent requirement. (Manilla v. Gorski)
(B) Open and Notorious: Where the taking is accidental and along a border between parcels where the intrusion is not clear or self-evident, and may require a survey to discern, the occupation is not “open and notorious”