Property I Outline

Property Schindler Fall 2017
First in Time
Acquisition by Discovery
Rule: Land transfers are only valid when made under the rule of the prevailing gov’t. (Johnson)
Acquisition by Capture
Rule:  Pursuer “manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control.” (Pierson)
Exceptions: (1) Ratione Soli = Constructive possession on your own land (2) Livingston’s Dissent = “Reasonable prospect” of capture
Ghen Rule:  Under local custom, possession of whales occurs a person takes possession of the carcass and takes practical steps to secure it.
Keeble Rule: A property owner has a right to make lawful use of his property for profit without malicious interference of others.
Keeble Takeaway à Instrumental end: Encourages productivity of marketplace
See Framework 1: Approaching a farae naturae problem
Principles of Property –Theories of Property
Fugitive resources
Externalities
Internalizing externality
Common property
Acquisition by Creation
Principles of Intellectual Property (INS v. Associated Press)
Issues à (1) Whether there is any property right in the news (2) Whether that property right continue to exist after the publication of the news
Rules à (1) The news, information itself, cannot be copyrighted, only the production process (2) There remains a property right after publication only against other businesses and only for as long as “hot news” (quasi-property)
Cheney Bros. à Where the bros.’ fashion business cannot get copyright, only has rights to what they themselves produce à News has more important policy concerns
Copyright
Definition à Copyright owners have the right to prevent others from reproducing the work, creating derivative works, distributing copies of the work to the public, performing the work publicly, displaying the work publicly, and performing the work by digital audio transmission. Basically it is a protection on a work of authorship.
Term Length à For unknown authors: 95 years from first publication or 120 years from creation, whichever is shorter, or 70 years after the creators death (once the creator becomes known).
Requirements àvalid copyright must have: (1) originality (“independent creation”) (2) work of authorship (8 kinds of artistic works) (3) fixation (“tangible medium”)
Patent
Definition à A government license conferring the sole right, for a set period, to exclude others from making, using, or selling an invention.
Term Length à 20 years
Trademark
Definition à Under the Lanham Act, a trademark refers to any “word, name, symbol, or device” used to identify particular goods and their source.
Term Length à Renewable every 10 years (federal trademarks)
Chief Purposes à (1) Prevent consumer confusion about the origin of the goods or service (2) Encourage trademark owners to invest and maintain a consistent level of quality in the goods they produce (3) Prevent competitors from freeriding on the goodwill achieved by others
Requirements à (1) Distinctiveness: mark must distinguish the goods of one person from others (2) Non-functionality: functional features not protected. Functional = If exclusive use puts competitors at an advantage (3) First use: exclusive right to a mark depends on first use in commerce (as opposed to first adoption)
Property in One’s Persona (the Right of Publicity)
Rule: A common law right to publicity will be violated when a celebrity’s identity has been commercially exploited (White v. Samsung).
Dissent à The use of publicity is a form of parody.
Property in One’s Body Parts à Moore v. Regents
Rules: (1) There is no proprietary interest in cells and a claim of conversion should not be extended to include cells taken from the body (2) A doctor has a fiduciary duty to disclose all material interests that may influence a patient’s decision.
Concurrence (Arabian, J.): The body is not a bundle of sticks.
Dissent (Mosk, J.) Body can be a bundle of sticks; you just don’t have all of them. For example, think of other inalienable property e.g. prescriptions drugs, prof. licenses.
The Bundle of Rights
The Bundle: Includes the right to [possess, use, exclude, dispose, transfer, sell] Jacque à  The can’t cross my land case
Rule: The right of exclusion and bundle of rights are firm and absolute.
Shack à  The must allow entrance case
Rule: The ownership of real property does not include the right to refuse access to individuals providing government services to workers who are housed on the property. (right to exclude is not absolute).
Takeaways: Neither of these cases are dispositive. They both stand for propositions.
Abandoning Real Property
Pocono Springs v. Mackenzie à Rule: In order to legally abandon real property, the owner must successfully divest himself of all right, title, claim, or possession of the land (i.e. can’t abandon without a valid transfer).
Why can’t you abandon? à The bundle, statute of frauds, and tort liability.
See Framework 2: Fundamental Theories of Property
 
Subsequent in Time
Acquisition by Find
The Winkfield rule à In voluntary bailments, a wrongdoer that has paid full damages to a bailee cannot be held liable by the bailor.
Distinguishing Finder’s Cases
General (Armory) Rule à Finder has good title except against true owner and the prior possessor.
Finders in the Context of True Owners of Real Property
Hannah Rule à Owners of property have right to anything attached or under the soil.
But see à Even for unattached or above the soil, ownership vests in the property owner when a lost item is found on property over which the owner exercises exclusive control.
See Elwes– A gas company that was leasing the mineral rights to property found a boat while excavating the land but the boat clearly belonged to the property owner who exercised control of the property.
See also South Staffordshire (1896) – finders worked for a company who owned the pool where the rings were found.
Finders in the Context of Stores/Public Spaces
Rule à When a lost item is found upon property that is open to the public, ownership of the lost item vests in the finder as opposed to the owner.
See Bridges à Customer found money in a store that was open to public. When no owner was found, he sought the money from the shopkeeper. Finder wins because the notes clearly had been “lost.”
Rule à The simple act of finding misplaced property in a store does not give the plaintiff the right to take it and claim ownership.
See McCavoy – A finder of mislaid property in a shop does not have superior rights to shopkeeper. The difference between McCavoy and Bridges is that in McCavoy the patron deliberately left the pocketbook on the counter
Policy Reasons – Store should hold onto it in case patron returns.
Other Hannah Considerations – The Brooch Case
In practice à The owner always has a colorable claim to the property. Usually lost articles go to possessors of private property.
What if Peel ha