Property Law, Professor Brian Wall
William S. Boyd School of Law
Spring 2017
Day 1: Introduction; Acquisition by Discovery and Capture
Semester Outline
Property Law Subject
Property Creation and Acquisition
Adverse Possession
Estates and Future Interests
Co-Ownership
Leaseholds
Land Transactions
Land Use Controls: Judicial and Legislative
Related Elective Courses
Intellectual Property, Copyright, Patents, Trademark
Land Use Regulation
Trusts and Estates, Family Law
Family Law, Community Property
Sales and Leases
Sales and Leases, Secured Transactions, Real Estate Law
Land Use Regulation
Acquisition of Property
Johnson v. M’Intosh – Johnson bought land from Indians. Court ruled that discovery of Indian-occupied lands vested absolute title in in the sovereign (crown) that discovered it. Indians retain only right of occupancy, not title.
Key Takeaways
“First in time” – the first person to acquire property, generally speaking, is the owner of that property until they dispose of it
“Bundle of rights” – as mentioned at the top of page 5, these include:
Occupancy
Retention of possession
Use
Complete sovereignty
Power to dispose (alienability)
Theories of property law – natural rights; progressive
Pierson v. Post (Fox Case) – Pursuit of a wild animal alone does not vest any rights of possession. Must have some form of control, such as killing, mortally wounding, or trapping. Modernly, states have possession of wild animals and hunting may only be done by the grant of a right (hunting license).
Key Takeaways
Some cases are more famous than they deserve to be.
“First in time” may not be limited to possession, but could include time spent in pursuit of a piece of property. Does this apply to:
Televisions at a Black Friday sale?
Residential real estate?
eBay auctions?
Public policy considerations may limit rules on possession
Day 2: Acquisition by Creation #1
Intellectual Property, Copyright, Patent, Persona
Review Hypothetical
A famous baseball player hits a milestone home run into the upper deck. As a crowd of fans converges to catch the ball, Fan A catches the ball in his glove. The press of fans knocks him to the ground, causing the ball to fall from his glove and roll out of the scrum. Fan B, who was not part of the group jostling Fan A but was one of the fans going for the ball, picks the ball up off the ground. Fan A sues Fan B for the ball. Who should prevail?
Intellectual Property – Types
Property in one’s ideas and expressions
Copyright
Patent
Trademark
Property in one’s person
International News Service v. Associated Press – INS gets early editions of AP stories and paraphrases for publication in its West Coast papers. Not copyright infringement, but it is a misappropriation based on unfair competition principles.
Key Takeaways
News and current events cannot be copyrighted; however, while current events themselves may be public property, the act of gathering them into a story can create a quasi property
Key test is unfair competition in business: parties cannot misappropriate the material of another and pass it off as their own
Status of news in the age of the internet – is INS v. AP still in effect today? How would this case change if it was New York Times v. Buzzfeed?
Harper and Row v. Nation – Nation gets its hands on Gerald Ford’s memoirs and publishes key passages ahead of Harper’s planned roll-out in Time magazine. This is copyright infringement, not fair use, based on right of first publication and substantiality of the passages used.
Key Takeaways
Federal copyright protection requirements – originality, work of authorship, and fixation; term is life of creator plus 70 years
Right of fair use must be balanced against right of first publication
Fair use factors: purpose and character of use, nature of copyrighted work, substantiality of portion used in relation to copyrighted work as a whole, effect on potential market for value of copyrighted work
Hypotheticals – Copyright
Weird Al Yankovic releases his new single, “Fellow,” which parodies Adele’s “Hello.” The song uses all of the same music and notes as Adele’s “Hello” and closely imitates her rhyme scheme with substituted and parodic lyrics. Does Adele have a copyright claim against Yankovic?
After Disneyland announces its relaunch of the Main Street Electrical Parade, an adult film company releases its own “Main Street Skin-Lectrical Parade,” in which actors dressed as Disney characters engage in sexual activity to the parade theme song. Can Disney block the film on copyright grounds?
Diamond v. Chakrabarty –
Key Takeaways
Patent requirements – patentability, novelty, utility, non-obviousness, enablement
“Relevant distinction” is between products of nature and human-made invention
Does this open the door to
a person (the bailee) who holds the goods for the owner (the bailor).
In both voluntary and involuntary bailment, the bailee has obligations, typically under an ordinary negligence standard of reasonable care.
Principal-agent theory: depending on the circumstances and the jurisdiction, finders may represent their employers and ownership transfers to them, or may retain rights (and obligations) individually
e.g., housekeeper finds something left behind in a hotel. She is the agent of the hotel and must turn it over to the principal.
Treasure trove and shipwreck: in American law, typically treated like a find (exception for submerged vessels in state lands)
TT: Money or other valuables intentionally hidden (usually buried, but what about in a piano?). Ownership principles depends on where it was found (owner of estate).
Shipwreck
Hypothetical – Cocaine Airways
On January 30, 2017, an American Airlines maintenance worker in Tulsa discovered 31 pounds of cocaine stashed in the nose of an aircraft while performing repairs. The Tulsa County Sheriff’s Office took possession of the cocaine and handed it over to the DEA, who estimated its value at $434,000. Who “found” the cocaine, and how would you represent the maintenance worker, American Airlines, Tulsa County, or the DEA?
Acquisition by Gift – Introductory Notes
Distinction between gifts and wills, trusts, and estates
Most common legal issue with gifts is taxation; IRS authorizes two exclusions:
Annual exclusion: $14,000 per giver/recipient relationship is tax free
Lifetime exclusion: any gifts in excess of $14,000 per year accrue towards the lifetime exclusion, which is currently $5.45 million.
Gift requirements:
Intent
Delivery
Acceptance
Newman v. Bost – Decedent, believing he was about to die, made gifts to his housekeeper Newman. Constructive delivery is valid if the gifts are not present, or if present, too bulky to be delivered manually.
