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Problems: right of publicity should only protect against uses that advertise or primarily communicate endorsement – trademark law: protect consumers from being misled
Tragedy of the Anticommons (Michael Heller)
The Zacchini case
· stuntman, did a big stunt, news reporter showed it on the evening news without his permission, First Amendment doesn’t protect infringement on his right of publicity (went all the way to the Supreme Court), Zacchini sued and won
o Land below (Mineral rights)
o Air above (airspace)
o Into time segments
o Public policy considerations dominate (i.e. sperm as property divided among heirs)
Rule for invitee in public place (like a shop):
*Always a duty to notify IF found in place open to public
Armory v. Delamirie
Facts. Small child working for chimney sweep found a jewel. Where he found it not mentioned – if on client’s property, should belong to client. Sues appraiser, helps ensure hiring trustworthy employees by making them responsible.
o Duty to tell property owner? If found in course of work, employer entitled? Not addressed.
Held. Chimney sweep boy (finder) has better claim than apprentice (thief who steals from finder)
o Does not address rights of chimney sweep boy over property owner
o “Finder’s rights dominate over all but rightful property owner”
Bridges v. Hawkesworth
Facts. Finds notes in shop; shop owner tries to find owner and after a few years does not; nothing was found and 3 years later the finder comes back and wants to claim rights to the money b/c he found it. Finder comes to claim citing Armory rule, and shop owner claims he owns them because the notes were found in his shop
Hannah v. Peel
Facts. Brooch found in a private house of which government has requisition of as a hospital.
Government as occupant/controller of house could have a claim
House owner could have a claim: court stresses that owner had never been in possession of house/lived/occupied. IF they had and gov’t had occupied: then right goes to property owner for anything not brought by government. Finder cites Bridges for finders-keepers rule: found in plain sight in doorway. BUT if found in crevice: would have applied general rule for renters: lost property found goes to landlord
Corliss v. Wenner
Facts. Idaho. Carving out driveway and find glass jar filled with gold coins
Held. Glass jar = treasure trove.
Idaho doesn’t recognize treasure trove rule based on English CL rule: treats like lost/mislaid property
Rule: lost/mislaid property found by employee working land in course of employment goes to landowner
Popov v. Hayahsi
Applies rule of capture/occupancy of res nullius: first person to take possession of an unowned object becomes its owner
- things that never had an owner (wild animals)
- things that once had an owner (abandoned goods
Rule: where property is of obvious value, lost property never “given up” by owner
Applies Maritime Law of Salvage: property goes to true owners; finders get generous share commensurate with costs/expenses to recover plus reasonable bonus.
Finder’s strongest argument by demonstration of effort/costs; not finding or burning insurance papers constituting abandonment of claim
Uses equity principles: historic cl rule for a remedy based on cts of equity, resolution sought not a legal remedy (one answer at law – did Popov have control or not?)
Equity more concerned with fairness. Now many plea both law and equity. No binding precedent in equity. Decisions on the basis of each case. Precedent only guides when to invoke equity.
Rule. “where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has legally cognizable pre-possessory interest in the property.
Traditional rule of bailment
1. Gratuitous bailee: duty of slight care (no gross negligence). Doing a favor – standard of care a reasonable person would take: some care but not prioritizing over their own
2. Mutual beneficial bailee: duty to expend ordinary care (like you would treat your own things). Like a bank – you get benefit of safe place/bank gets paid.
3. Exclusive benefit bailee: duty to take extraordinarily good care (no slight negligence)
4. Involuntary bailee – person put through no act or fault of his on into a situation such that delivery put upon them of wrong bond. No duty to care for or guard subject of bailment and can’t be held liable for even the grossest negligence as long as lack of volition continues. If he exercises any dominion over thing bailed, becomes responsible as voluntary bailee.
5. Voluntary bailee
6. Alternate approach: take care reasonable under these circumstances
Modern rule: did bailee exercise reasonable care in the circumstances?
Buena Vista Loan and Savings Bank v. Bickerstaff
Money put in safe deposit box and cash disappeared. What a reasonably prudent bank would do in same situation: control access to boxes. Presumption of negligence: bailees are in better position than bailors to know or determine what happened to the bailed goods. Burden of proof passes to bailee to show that goods were handled with due care. Establish: 1. Bailment was created 2. Bailee either failed to return the goods or returned damaged. If bailment not created, usually business not liable for loss or damage to owner’s property. If bailee fails to rebut, bailor can recover full value of bailed goods. Lease: a transfer of the right of possession and use of goods for a term in return for consideration, but a sale, including a sale on approval or a sale or return, or retention or creation of a security interest is not a lease.
Bona Fide Purchasers
1. Good faith purchaser
2. Purchase for value
3. Seller must be in good-faith possession
Must prove: 1. Intent to make a present transfer, 2. Delivery: actual or constructive (in writing), 3. Acceptance.
Simpson v. Simpson
Gift of guns not made in anticipation of death.
- Intent: son says father said he wanted to give him his guns. Usually sufficient for inter vivos; in this case, where father dies and his will shows he gives everything to his son, intent satisfied because a. normal to give guns to son, and 2. Will says everything to son.
- Delivery: opposed by ex-wife. Replacement for consideration to signify strength of intent.
- Acceptance: would be clear in this case.
Trespass and the right to exclude
Rule. Trespassers liable for all actual danages + punitive
Facts. Nebraska, wealth in real property in Adams Cty. No will. No family/heirs.
determined only at death. Relatives designated by state statute to receive a dead person’s (or decedent’s) property in event he dies without a valid will (or intestate)
- Only determined at death! You have no idea who they are until you die.
- Spouse, kids, parents, siblings, sibs kids, some include cousins, basta (in that order)
- Writing will: your legal heir remains the same, but will overrides. The person you designate is your devisee (replaces heir) for real property/legatee for personal property
Lawyers Trust Co. v. City of Houston
City of Palm Springs v. Living Desert Reserve
White v. Brown Rule of construction: yield to testator’s intent, presume testator intends all of property, presumed to convey largest possible estate.
Facts. Warranty deed conditions land to be used for school land otherwise to revert to H
o Clearly not fs absolute; fs determinable: ambiguity hinges on “;”
§ N.B. intent can be expressed/interpreted w/in deed itself (‘whereas clause’)
Held. FS det. Not ambiguous enough.
Rule. “FS determinable may be thought of as a limited grant, while a FS subject to a condition subsequent is an absolute grant to which a condition is appended”
4. Unity of title (when JT interest)
Tenancy in Common (TIC)
a. No right of survivorship
b. Not necessarily equal interests in the property
c. Interest freely inheritable and devisible; somewhat increases alienability
Tenancy by entirety
a. Each has a right to use the whole (by law)
i. K can physically divide up physical property
b. Each has right to exclude
c. Natural, consumable resources: each has right to equal share of value
d. Each has a right to equal share of property taxes, mortgages, etc.
e. Repairs – can get a write of repairs for necessary repairs (to maintain integrity/value of property); Ct can argue that they all contribute (a. Not applicable in case of waste, b. Non-necessary improvements: if dramatic enough, might not have to share in price of “repair”)
f. Always have right to partition
g. Requires 4 unities + husband and wife
Court-ordered partition (co-owners always have right)
o In-kind : the land itself is divide; Ct prefers
o In sale : where not physically divisible
Presumptions/Rules of Construction
Every state favors TIC (James v. Taylor)
o somewhat increases alienability - where not specified, historically assumed that person wants to do what most people would want to do
o Now we are more individualistic, TIC becomes more common, we specify more in will devisees.
o Reflects what people would want
Spouse dies without a will, surviving spouse gets everything, unless there are children. If children, surviving spouse gets half, and child gets half (if 1 child). If more than 1 child, states differ:
o Spouse gets half, rest split; or
o Spouse gets 3rd, rest split
- Altered by Uniform Probate Code: in determining forced share, include property acquired by spouse at decedent’s death but not through the estate.
o Examples of property not through estate: life insurance, house might come by joint tenancy (both not counted in traditional forced share)
Separate property state: must characterize the property
Community property: must be split
Community/Marital Property - Divorce
Everything else:Joint bank accounts: equally split where all $$ earned during marriage
· Loan/mortgage: both must sign
· Debt: both
· Loan/mortgage/debt: one with money should sign
· i.e. Dr. or Lawyer (one most vulnerable to malpractice suit), you want property in other spouse’s name if it’s a good one
· At divorce, all property acquired is marital, split equitably or equally
Property Rights of Unmarried Couples
§ Where landowner has duty of legal possession
§ Breach: may fail by act or failure to act where there is a duty to act
· Premises not safe, cannot be used, landlord had duty to fix and didn’t = constructive eviction (if you can’t use it, it’s as though someone came in and kicked you out)
o MUST move out because otherwise it’s like agreeing
§ Covenant to pay rent is implied under ICQE
If landlord has substantially interfered with ICQE by failing to act where they failed to act, you can stop paying rent. Constructive means it’s as though you were evicted. Requirement for you to exercise that remedy is for you to vacate within a reasonable time in order to exercise that remedy. Majority approach. Minority recognizes paying damages and abatement of rent if no value to premises if condition is so bad (don’t require you to actually leave).
o allows you to stay in possession and pay lesser rent
§ Seek a declaratory judgment
§ Remedy: withhold rent, constructive eviction, vacate within a reasonable time
o To determine where there is a duty: 1. Lease provisions, 2. Common law exceptions to caveat lessee – generally landlord has no duty as to condition of premises. Exceptions to caveat lessee where landlord has duty: short-term lease of furnished dwelling, to maintain common areas, to disclose defect.
o Majority rule, now recognized for residential leases only
o MUST BE clean, safe, fit for human habitation
o Implied warranty of habitability : paying rent is a waiver of your right. Majority: says you can’t waive that right b/c against public policy.
o If commercial lease: may try to seek remedy for value.
o Remedies: property law entitles you to specific performance
§ May repair and deduct - hire someone to do job, then deduct from rent
Castaneda v. Olsher
Gang shooting in mobile home complex. P shot and injured
Issue: is there a duty not to rent to gang members? Background check?
- Look at foreseeability and burden on D to check. Asking that might be discrimination.
Held. No duty not to rent. Background check to great a burden.
weigh strong foreseeability and burden on defendant. Balance factors.
o Duty not to rent to person who says they will kill
o Ex-con who has murdered before: may discriminate against felons, sex offenders b/c not a protected class
- Held. No duty to evict once problems start. Not foreseeable enough that there would be a gang shooting in the park. Maybe concern of discrimination.
- Held. No duty to maintain security guards. Violence not highly foreseeable. Shooting would’ve occurred regardless.
- Anything attached to real property in a functional manner
- i.e. carpet is a fixture; not a rug. Fresco, yes; painting;no. Recessed lighting, yes; lamp, no. growing corn, yes; ripe corn, no.
- What is a fixture in a commercial setting
- Would normally be fixtures but are tied to a particular use (i.e. bank’s safe; particular stove for a restaurant)
- i.e. special locks on a pharmacy can usually be removed when pharmacy moves
- Majority rule: must keep paying rent. Scottish rule says no. English common law says yes, even where premises destroyed.
- Landlord suffers total, permanent loss. Renter suffers short-term.
- Pay IF there’s no provision in the lease – MAKE SURE it’s in the lease!
no need to give notice: must run for whole period of time. Tenant abandons premises.
- After abandonment? Whether landlord had duty to mitigate damages by releasing to someone else and earning that rent from them.
- Duty to mitigate under K law
- 3 year term of years, want to leave: talk to landlord first.
o Do nothing – do not accept
§ Not available for residential: duty to mitigate
§ Majority rule unless stated otherwise in lease provision
o Accept and lease for landlord’s benefit
o Do not accept – re-let for landlord’s benefit
§ Tenant gets higher price
o Not allowed to use self-help: landlord should go through legal process of eviction. IF doesn't want to give the key. Duty to secure the premises. Didn’t give the key, he evicted her without going through judicial process. Some jurisdictions say no self-help. Judicial process you go through.
o Peaceable manner: changing locks isn’t peaceable.
right of dominion from God
right to own body and fruits of your labor
Gave rise to: 1. Right to personhood/personal labor; 2. Right of privacy and possession
Moore: cells aren’t property, no conversion for taking them. (S. Ct. CA)
if society expects it will be treated as property, those expectations may justify treating it as property
Ties in with economic theory (tragedy of the commons, tragedy of the anti commons)
Midler v. Ford Motor Co.
- Using likeness of Bette M’s voice a violation of her property right
- State common law tort (property right) v. Fed. Legislation (copyright)
§ Preemption – Fed statute often trumps state/federal law conflict
§ Remedies – common law right to property rec by courts and can be protected/remedies accordingly
ETW Corp. v. Jireh Pub. Inc.
- Does painting violate right of publicity or does this fall under artists 1st amendment right?
- Unfair competition COA, 1st Amend. weighed higher – balanced against commercial value to Tiger
- Applies transformative test: dies it reproduce a celebrity’s id for sale as commercial merchandise?
When good have been delivered under trn of purchase the purchaser has such power even though
(a) trnor was deceived as to id of purchaser; or
(b) delivery was in exchange for a check, later dishonored; or
(c) it was agreed that the trn was to be a “cash sale”; or
(d) the delivery was procured through fraud punishable as larcenous under the criminal law
(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to trn all rights of the entruster to a buyer in the ordinary course of business.
(3) “Entrusting” includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusing or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law.
Charles Evans BMW v. Williams
- Evans BMW keeps car b/c they were good faith purchaser: bank also believes Hodges was Williams
Lindholm v. Brant
P owned Warhol’s “Red Elvis” and did not want to sell. Loaned painting to museum. Did not believe she had sold Red Elvis.
Malmburg had access to the painting as agent of Lindholm w/ right to hold painting (sort of bailee) and move to other exhibits.
- Sells to Brandt saying that he owns painting
- Common thief entrusted with painting, claims its his own and sells it
- UCC §42a-2-403(2): M as merchant entrusted with painting had power to transfer all rights of entruster to a buyer in “ordinary course of business”
- P argues she never gave M that painting to sell: statute says that doesn’t matter b/c any entrusting to someone in the ordinary course of business of selling makes it a different situation.
- Entrusted to M for exhibiting, but because it’s entrusted to him when he regularly is in the business of selling, the public has a right to assume that he has a right to sell a painting.
- §4a1-201(9) legislative desire, however, for courts to respect “the usual or customary practices in the kind of business in which the seller is engaged.”
Concl. P can’t collect painting or money from B. P’s only source for remedy is M.
ring goes to donor.
PA adopts majority no-fault rule; restatement 58) minority “fraud” rule: woman keeps ring even if she can’t prove he was at fault/fraudulent.
the law doesn’t require you to give them back but it’s proper etiquette
Permanent gifts once there’s intent, delivery, or acceptance.
bright-line rule woman keeps the ring absent proof of fraud (Montana). Unless agreement expressly saying that in case of a breakup the ring goes back to guy. Fraud like the man never intending to go through with the wedding but wanted something in return in the meantime that he would likely get.
*Supreme courts reluctant to accept fault rule because they’d have to dig into all the dirty details.
Jacque v. Steenberg Homes, Inc
D only gets $$ for selling prefab home if placed on property. Only way to do that is through P’s property b/c other route through snow/steep/etc. Delay = no pmt.
P refuses to let D pass property; he does it anyway. No damage to property.
Rule. Trespassers liable for all actual danages + punitive
Real estate is transferred through
Must meet all elements:
1. Time period: state-specific statutes, most ~15 yrs
a. AP of previous owners may be factored in. Consider: specific people in involved + statute
3. Continuous (or uninterrupted)
4. Open (or visible)
a. Noticeable: must give owner opportunity to object
5. Hostile (or adverse)
7. Under claim of right made in good faith
Gov’t property may not be gained by adverse possession.
*Adverse beliefs insufficient: requires visible appropriation; mistaken beliefs about ownership do not trn title until someone acts on them
*Joint use insufficient
*Requires intention to claim property as one’s own to the exclusion of all others
1. when someone thinks they own property and improves (adds value) to it. Two innocent parties. Buyer must be innocent
i. General rule: wrongful improver loses unless there’s a huge amount of value to lose by mistake.
1. Exception: where substantial improvement: mistaken/wrongful improver can keep/sell furniture but must pay “standing timber” value to property/tree owner
Burden of proof must be shown by competitor (one challenging the patent)
Laws of nature cannot be patented
granted only by fed gov’t (U.S. patent office) to first to patent (used to be first to invent. Applicant has burden of showing the claimed invention is new, non-obvious and useful. It’s long process, requires complete disclosure in invention (read broadly). Exclusive right for 20 yr from application date.
- Temporary statutory freeze extending copyright right now from 1923
- Words can be copyrighted as long as not functional
- Facts cannot be copyrighted
- To encourage people to develop their products and not compete
protects interests of celebrities in controlling the commercial exploitation of their names and likenesses. Generally regarded as a spinoff from the rights of privacy. Right of privacy is a legal newcomer, generally understood as a 20th C development. Is a creature of state law, and its contours are still developing.
- Can’t use image for commercial activity or endorsement (i.e. holding starbucks cup used in ad)
- If reasonable and prudent person would view as an endorsement such that it confuses the public, even posting on instagram privately infringes right of publicity
- 1. Protect the public and the 2. Celebrities rights to promote what they choose to promote
reason is to protect consumers from being deceived as to origin of goods bearing the marks, not to promote investment in their creation. Develop as consumers associate the marks on goods with a single source.
- Public benefit from CL trademark: they want to know they’re buying the good stuff, takes away incentive for companies to improve their product if they can’t protect it, incentivize companies to brand their products to promote label recognition
prohibits unauthorized use of a reproduction, copy, or imitation of a registered tm in a way that is likely to cause confusion with the registered mark.
o Relevant factors to confusion: A. Degree of similarity between designation and tm or trade name in 1. Appearance, 2. Pronunciation of words used, 3. Verbal translation of pics/designs, 4. Suggestion; B. intent of actor in adopting the design, C. relation in use and manner of marketing; D. degree of care likely to be exercised by purchasers.
By conferring exclusive rights in a work, Patents and copyrights provide rewards proportional to the value of that work. Two utilitarian justifications:
1. Public Benefits Justification: give incentive just large enough to encourage authors/inventors to engage in socially useful creative/innovative work we (society) want them to do
2. Natural Rights Justification: authors or inventors are naturally and inherently entitled to the value of their creative or innovative work.
3. Particular interest – rule advances the interests of some individual or group with political or economic power
Baker v. Selden
- Rule. Copyright protection is limited to the protection of the expression of the idea and doesn’t extend to the idea itself
o Where the truths of science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in his own way.
- Concl. Blank account books aren’t the subject of copyright; the copyright of S’s book didn’t give him exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book
- The first-to-file aspect was largely supported in that whichever party can prove they filed an invention first will have a greater claim over other manufacturers and better their chances of receiving a patent. Secondly, the scope of novelty was determined to not be some significant change, but simply enough to make a noticeable positive difference. Also success of a minor innovation is for grounds for patenting in light of the numerous failed or discontinued minor innovations pursued.
o It may improve only slightly on original design, but if the design’s impact and use is significantly improved, it can be sufficient.
o Key: burden of proof of anticipation for an unpatented idea: to show evidence that Morley had invented the same thing prior to Glidden
§ Glidden’s strongest evidence: usefulness – as soon as Glidden came out with it everyone started using it
§ IF patented idea: Glidden would have to show that one of the prior designs anticipates his
§ prior art ‘anticipates’ only if it is essentially identical to the claimed invention, containing essentially every element of the invention claimed by patent applicant.
· Very narrow standard
· To protect market share: come up with slight improvements so that you can keep the market after the 20 years
§ Buying a product includes:· The Process: how it’s made, which is protected by patery and hope nobody can figure out how to make it...)
· Good will: customer loyalty. Protected by TM on name and packaging, slogan
o No TM when in generic use
o CL: protects customers and TM
o Lantham: protects customers
o State anti-dilution act: protect economic value of creator of the original tm
Metro-Goldwyn-Mayer Studios Inc v. Grokster, LTD
- Rule. Violation of copyright requires foreseeable misuse.
o Direct evidence of unlawful purpose: when one induces commission of infringement by another or “entices or persuades” another to infringe (Blacks)
Making the device itself a violation where its 1. Primary use, 2. Knowing/intended use was to facilitate copyright infringement
o Mere knowledge of infringing potential not enough
- Facts. Hunting foxes on wild, unpossessed wasteland. Pearson knew he was fox hunting and was opposed to fox hunting, and then killed the fox. Dispute over who owns the dead fox?
- Rule. The state owns wild animals for the benefit of all the people
- Rule. The person who killed the fox owns it. Pursuit alone is not sufficient to gain ownership of an animal. You gain ownership by killing, capturing, or mortally wounding it (if licensed and on land you have a right to be on – if trespassing, but legally killed, deer owned by property owner)
- Rule: Property rights in body:
o Own your body as long as it is attached
o Selling bodily organs ok for research, not for transplant (state). Federal law: can’t sell across state lines.
o Donating to discover test-
- selling hair: Finder gets abandoned property: argument that it’s not abandoned
o If hair can be sold if it “falls off” – still conversion?
o Policy interest: protecting what is right and fair without requiring things like signing a K every time you get your hair cut
Renewable body parts: you can sell
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