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CHAPTER 1: CONCEPT OF PROPERTY A. Why Does Our Society Recognize Property? Five Theories That Justify Recognition of Property Rights 1. Protect First Possession First come, first serve. First-in-time rule: the first person to take occupancy or possession of an unowned thing owns it>a prior possessor prevails over a subsequent possessor; this is a fundamental part of American property law today. This rule relates to key social policies which reward labor, protect investment in resources, and encourage people to bargain with each other rather than fight. This rule is usually tested in wild animals and finders. o a. Capture of Wild Animals possession of wild animals requires capture, rather than pursuit (Pierson v. Post). Rewarding capture fosters competition and is an easier rule to administer. b. Finding Property Fundamental issue here is when a finder should be entitled to the value of the find against other claimants such as the ownere of the thing found, the owner of the land where the thing is found, and the prior finderleads to characterization of whether the property was lost, mislaid, abandoned, or treasure trove. The concept of constructive possession under which a person is deemed to be in possession of things of which he is unaware is important in this area. 2. Encourage Labor John Locke said each person is entitled to property produced through their own labor. Labor (owned) + Natural Resources (unowned) = property (rights in the mixture); Labor added value and thus it became PRIVATE PROPERTY: where everything is virtually already owned the encouragement of labor is not as strong of a theory as it previously was, however in the realm of copyrights and patents the theory can be asserted today. 3. Utilitarian a. the traditional utilitarian theory (Bentham) asserts that the recognition of property maximizes overall happiness: how? Three principles govern property rights: o o Universality: means all valuable, scarce resources must be owned by someone Exclusivity: if an owner is unable to exclude others from the use and enjoyment of the property, then the owner has no incentive to improve the property (suppose an owner worked the land and planted crops, and an opportunist simply waited until the crop was ready to be harvested and took it away from the hard-working owners land: no owner would take an undertaking if he did not have the right to exclude others from his land)

Transferability: can sell, rent, or lease property Property rights are allocated and defined in a manner that best promotes the general welfare of society. b. Law and Economics Approach: incorporates economic principles into utilitarian theory; assumes that human happiness can be measured in dollars and private property exists to maximize the overall wealth of society

4. Ensure Democracy - civic republican theory suggests that property facilitates democracy. "a right to private property, free from government interference, is in this sense a necessary basis for a democracy." Personal stakes in property help ensure political and social benefits to all. 5. Personhood Theory - Hegel argues that property is necessary for an individuals personal development. Each person is seen as having a close emotional connection to certain tangible things, which virtually become a part of ones self. "to be a person, an individual needs some control over resources in their external environment. B. What Is Property? A. The law defines property as rights among people that concern things B. Legal Positivism the dominant view in the US is that property rights arise only through the government (also known as legal positivism). For example, in Johnson v. MIntosh, 21 U.S. 543 (1823), the Supreme Court stressed that in deciding land claims based on Native American rights, it could only rely on laws adopted by the federal government, not on natural law or abstract justice. C. Scope of Property Rights Property rights are limited/relative under our legal system, they are not absolute. They exist to the extent that they serve a socially useful justification. D. Property as a Bundle of Rights: o i. The right to transfer: Technically called alienability, or the right to transfer property. As a general rule, any owner may freely transfer any of her property to anyone. Its not an exclusive right; there are times for public policy reasons that this right will be limited. Restrictions on who can transfer or obtain property (insane person cant), types of property that can be transferred and how property may be transferred (in order to avoid fraud, uncertainty, etc.) Advocates of law and economics utilitarian approach stress that the right to transfer is vital for efficiency in our market economy b/c it helps to ensure that property is devoted to its most valuable use. Johnson v. MIntosh (1823) and Moore v. Regents of the University of California (1990)

Johnson v. MIntosh: (also exemplifies rule of capture) Discovery of America In the beginning all the world was America, John Locke wrote, meaning that it was up for grabs. The European nations had a convention that discovery of America gave title to a government when its subjects made the discovery. When the Native Americans contested this, the Supreme Court held that discovery gave title to the European nations which passed title to the states or to the U.S. The Native Americans were not regarded as in prior possession of America; they were hunters who moved their villages and unlike the Europeans, were not settlers who built permanent homes, stake out farms, took possession of tracts of land. As an alternative to title by discovery, Supr. Ct. held that the Europeans, and subsequently the U.S., acquired title by conquest. Although not recognized as having title or ownership, the Indian tribes have a right of occupancy of their land, which has been granted by and remains subject to the control of the sovereign Congress.

Moore v. Regents of the University of California: Rights in Body Products Some body products have long been sold on the marget such as blood, hair, sperm, but recent advances in medical science have created an unprecedented demand for body products or body parts of other types. Can these be sold? Can they be owned? In Moore v. Regents, the court held that a man did not have a property right in his spleen following its removal from his body by doctors who made it into a patented cell line of great commercial value (no property-based claim against physicians). The doctors who created the cell line thus acquired original ownership. The court held that the patient had only the right to sue the doctors for failure to disclose their research and economic interest in the patients cells. In ruling, the court was concerned about making body products property that could be sold. However, transferability in the market is not an essential characteristic of property. Although most property is freely transferable, some property is not alienable and some property can be given away but not sold. The hard question with

body products or body parts is not whether they should be treated as property, but whether they should be saleable. ii. The right to exclude: The law generally protects an owners right to exclude others from his property, subject to privileges such as consent and necessity. Other exceptions to the right to exclude may exist, depending on jurisdiction. Jacque v. Steenberg Homes, Inc. (a landowner has the legal right to exclude others from his private property) and State v. Shack (property rights serve human values. non-owners have right of access to property based on need or some other important social-policy) iii. The right to use: An owner is normally entitled to use her property as she wishes, as long as she does not injure the rights of other. The spite fence and nuisance doctrine define the limits of the right to use. Sundowner, Inc. v. King and Prah v. Maretti (exceptions to the general rule that a landowner is entitled to use her land as she sees fit) Sundowner, Inc. v. King: Spite Fences A spite fence erected solely to harm the neighbor and of no economic benefit to the erecting party, can be enjoined as a nuisance (landowner cannot erect an unusually high fence along his property line for the sole purpose of annoying his neighbor). Such conduct has no social utility. Prah v. Maretti: Private Nuisance an intentional, nontrespassory, unreasonable, and substantial interference with the use and enjoyment of plaintiffs land. Sunlight It has been held that blocking a neighbors solar collector can be enjoined as a nuisance. iv. The right to destroy: The scope of an owners right to destroy is unclear. In practice, the law rarely intervenes to prevent destruction. But concern arises when an owner seeks to destroy property that has substantial value to society, and some courts have limited this right. Eyerman v. Mercantile Trust Co. (Court ruled that the owner could not demolish her property because it was concerned about the waste and destruction of resources inherent in allowing so)

E. Real property consists of rights in land and anything attached to the land (e.g., buildings, signs, fences, or trees). Personal property consists of rights in things other than land. There are 2 main types of personal property: chattels (tangible, visible personal property such as jewelry, livestock, cars, and books) and intangible personal property (invisible, intangible things such as stocks, bonds, patents, debts, and other contract rights).

CHAPTER 2: OWNING REAL PROPERTY A. Adverse Possession Definition: a doctrine providing that possession will ripen into ownership if held long enough under certain conditions. o Ex. A occupies Bs land for a long enough period while meeting certain conditions; A acquires title to the land without Bs consent. Why does this doctrine exist? Four justifications: Preventing Frivolous claims: A special statute of limitations for recovering possession of land. It bars lawsuits based on stale, unreliable evidence, thereby protecting the occupant from frivolous claims. Also provides the occupant with security of title, thus encouraging productive use of land. Correcting title defects: Mistakes often occur in the process of conveying title to land. Ex. Property description of a deed might contain an error. Under this model, lengthy possession serves as proof of title. Encouraging development: It is a tool to encourage economic development because it reallocates title from an idle owner to a more industrious squatter, thus promoting the productive use of the land. Protecting personhood: Echoes the personhood theory: things you have used as your own for a long time take root in your being and cannot be torn away. In most jurisdictions, an occupant obtains title to land through adverse possession if her possession meets the following elements6 Elements of Adverse Possession: o o Actual: the claimant must physically use the land in the same manner that a "reasonable" owner would, given its character, location, and nature Exclusive: the claimant's possession cannot be shared with the owner or with the public in general

Open and Notorious: the claimants possession must be visible and obvious, so that if the owner made a reasonable inspection of the land, he would become aware of the adverse claim

Adverse and Hostile: some states require good faith belief that he owns the land, rare nowadays to find bad faith or intentional taking of title requirement, and most states find the claimants state of mind irrelevant; all states agree that possession authorized by the owner does not meet this requirement.

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Continuous: claimants possession must be as continuous as a reasonable owner's would be, given the character, location, and nature of the land. Statutory Period: the period for adverse possession ranges from 5 to 40 years, depending on the state. Most common are 10, 15, and 20 years.

Airspace Rights Subsurface Rights Water Law o

CHAPTER 3: OWNING PERSONAL PROPERTY A. The Origin of Property Rights Property courses sometimes begin with the ownership of wild animals because this subject helps answer a key question: how do property rights begin? Because wild animals in nature are unowned, the rules governing their acquisition help us understand the policies that influenced American property law. The Capture Rule in General Basic Rule No one owns wild animals in their natural habitats. Under the common law capture rule, property rights in such animals are acquired only through physical possession. The first person to kill or capture a wild animal acquires title to it. Defining Capture: Pierson v. Post o The leading case interpreting the capture rule is Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805). Post, a hunter, found and pursued a fox over vacant land. Pierson, fully aware that Post was chasing the fox, killed it himself. When Post sued Pierson for the value of the fox, the court held that Pierson was the true owner, because he had been the first to actually kill or capture the fox, however rude his action may have been.

Release or Escape After Capture o In general, ownership rights end when a wild animal escapes or is released into the wild. However, if a captured wild animal is tamed such that it has the habit of returning from the wild to its captor, it is still owned by the captor.

B. FINDERS OF PERSONAL PROPERTY Four categories of found chattels: i. Lost property: the owner unintentionally and involuntarily parts with it. ii. Mislaid Property: the owner voluntarily and knowingly places it somewhere, but then unintentionally forgets it. iii. Abandoned property: Property is abandoned when the owner knowingly relinquishes all rights, title, and interest to it iv. Treasure trove: concealed it in a hidden location long ago. Gold, silver, coins, or currency. Finders as Owners The law of finders is more complicated than the pithy rules that courts often espouse. Three factors dominate the analysis of finders rights: (1) the presumed intent of the original owner; (2) the identity of the competing claimants; and (3) the location where the item is found. Who is a Finder? The first person to take possession of lost or unclaimed personal property is a finder. Possession requires both (1) an intent to control the property and (2) an act of control. o Categories of Found Property (Revisited) o Four Traditional Categories The rights of a finder and other claimants turn in large part on which of the four traditional categories the found object fits into: abandoned property, lost property, mislaid property, or treasure trove. Abandoned Property

Property is abandoned when the owner intentionally and voluntarily relinquishes all right, title, and interest in it.

Lost Property o Property is deemed lost when the owner unintentionally and involuntarily parts with it through neglect or inadvertence and does not know where it is.

Mislaid Property o Property is considered mislaid when the owner voluntarily puts it in a particular place, intending to retain ownership, but then fails to reclaim it or forgets where it is.

Treasure Trove o Finally, English law recognized a category called treasure trove, consisting of gold, silver, currency, or the like intentionally concealed in the distant past by an unknown owner for safekeeping in a secret location.

Rights of Finder Against Original Owner o As a general rule, an owner retains title to lost or mislaid property found by another. In contrast, the first person who takes possession of abandoned property acquires title that is valid against the world, including the prior owner.

Rights of Finder Against Third Persons Generally o The finder acquires title to lost property that is superior to the claims of all other persons, except (1) the true owner and (2) sometimes the landowner. For example, in Amory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1722), a chimney sweepers boy found a jewel and took it to a goldsmith, who refused to return it; the court concluded that the boy had title to the jewel, not the goldsmith. o

Rights of Finder Against Landowner o o A. Rights to Objects Found on Private Land Lost objects found either within a house or embedded in the soil are generally awarded to the landowner, not the finder. The status of the finder is sometimes relevant here. A long-term tenant who finds an

object will often prevail over the landowner, while a finder who is merely the landowners employee will not. o o B. Rights to Treasure Trove American courts differ on how to handle treasure trove. Although some older courts award title to the finder, the modern view is to award it to the landowner. o C. Rights to Objects Found in Public Places Statues Defining Rights of Finders In many states, statues governing rights in found property supercede the confusing common law. The typical statute requires the finder to turn over the item to the local police department; the find is then advertised and the true owner has a set period (ranging from 90 days to one year) to file a claim. If no claim is made within this period, the item belongs to the finder. If the true owner makes a timely claim, some jurisdictions require that she pay a reward to the finder. C. GIFTS OF PERSONAL PROPERTY a. Gifts in Context The right to transfer property by gift is uniformly recognized as a fundamental right. The rules governing giftsonce remarkably rigidhave been in transition for several decades. b. What Is a Gift? A gift is a voluntary, immediate transfer of property without consideration from one person (the donor) to another person (the donee). The law recognizes two categories of gifts: the gift inter vivos and the gift causa mortis. Generally, inter vivos gifts cant be revoked c. Gifts Inter Vivos 1) Intent o There are three requirements for a valid gift inter vivos: intent, delivery, and acceptance. Turning to the first requirement, the donor must intend to make an A valuable object left in a public place is considered mislaid property and awarded to the owner or occupant of the premises, not the finder.

immediate transfer of ownership to the donee. See, e.g., Gruen v. Gruen, 496 N.E.2d 869 (N.Y. 1986). The statements and actions of the donor usually provide the best evidence of intent. But if the donor intends the gift to take effect in the future, it is ineffective. 2) Delivery o There are three main methods of delivery. Traditionally, delivery connoted manual delivery, that is, the physical transfer of possession of the item to the donee. Manual delivery is often impossible or impractical, however; all jurisdictions allow constructive delivery in this event. Constructive delivery occurs when the donor physically transfers to the donee the means of obtaining access to and control over the object, most commonly by handing over a key. Finally, symbolic deliveryphysically transferring to the donee an object that represents or symbolizes the objectis permitted in many jurisdictions if manual delivery is difficult. 3) Acceptance o Finally, the donee must accept the gift. Courts presume acceptance of a gift that is unconditional and valuable to the donee. d. Gifts Causa Mortis o i. A gift causa mortis is a gift of personal property in anticipation of the donors imminently approaching death. It requires all three gift inter vivos elements, plus a fourth element: the donors anticipation of imminent death. o ii. Restrictions On Donors Autonomy o In general, a donor is free to give his property away to anyone he chooses. Statutory exceptions have eroded this rule in extreme situations. For instance, most states restrict lifetime gifts by one spouse that are intended to nullify the property rights that the law accords to a surviving spouse. o D. OTHER PERSONAL PROPERTY RULES i. Accession o Under the doctrine of accession, one who in good faith applies labor to anothers property acquires title to the resulting project if this process (1) transforms the

original item into a fundamentally different article or (2) greatly increases the value of the item. ii. Adverse Possession of Personal Property (Chattel) o Most courts hold that one whose possession of a chattel owned by another is actual, adverse, hostile, exclusive, open and notorious, and continuous for the requisite period obtains title to it through adverse possession, by analogy to the rules governing real property. iii. Bailments o o A bailment is the rightful possession of a chattel by someone other than the owner, e.g., where A borrows Bs book. In most states, the bailees duty of care for the chattel is governed by the ordinary negligence standard. However, a bailee who delivers the chattel to the wrong person is usually held strictly liable. o iv. Bona Fide Purchasers o As a general rule, a seller of personal property cannot pass on better title than he possesses, even to a bona fide purchaser. However, there are several exceptions that protect the title of a bona fide purchaser under limited circumstances. o v. Voidable Title (AP of Chattel) o A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase, the purchaser has such power even though: vi. Entrustment a) the transferor was deceived as to the identity of the purchaser, or b) the delivery was in exchange for a check which is later dishonored c)it was agreed that the transaction was to be cash sale or d) the delivery was procured through fraud punishable as larcenous under the criminal law.

Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business. 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 entrusting or the possessors disposition of the goods have been such as to be larcenous under the criminal law.

CHAPTER 4: INTRO TO INTELLECTUAL PROPERTY Intellectual Property Common Law Rule The common law provided no protection for intellectual property. The inventor owned the chattel that embodied the invention, but not the design of the invention. Today, exceptions have largely swallowed the common law rule.. Right of publicity is an exception to the traditional rule also. Copyrights, patents, and trademarks share the first in time system for allocating entitlements, provide the owner with the principal right to exclude others from using the intellectual property, are all governed by federal statutes. A. Copyrights-protects original works of authorship o Federal copyright law protects rights in original books, articles, songs, paintings, and related artistic creations that are original and fixed in tangible, physical form. New works receive copyright protection for the authors life, plus 70 years after her death. However, there are a number of exceptions to the scope of copyright protection. o Property Casebook Notes: The Constitution authorizes Congress to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. US Const. Art 1, 8 this basically says that copyright law exists to serve the utilitarian goal of promoting the progress of science and useful arts; this protection serves this goal by giving authors an incentive to produce works that will benefit the public.

Owner of a copyright has the primary right to exclude: prevent others from reproducing her work, creating derivative works, distributing copies of the work to the public, publicly performing the work or publicly displaying the work during the term of the copyright. Owner may transfers her copyright to others, or effectively destroy the copyright by abandoning it.

*Valid Copyright Requirements (O.A.F) 1) Originality: the work must be independently created, not copied from another source. It must also possess at least a minimal degree of creativity. o 2) Authorship: eight categories of "works of authorship" are recognized by statute; (a) literary works (including computer programs); (b) musical works; (c) dramatic works; (d) pantomimes and choreographic works; (e) pictorial, graphic, and sculptural works; (f) motion pictures and other audiovisual works; (g) sound recordings; and (h) architectural works. Other analogous works may qualify o 3) Fixation: must be written, recorded, or otherwise embodied in some physical form. Thus, it must be "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. o o *Registration and notice are NOT required for a copyright Fair Use Defense 4 Factor test: The fair use of a copyright work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Fair use presupposes good faith and fair dealing. In determining whether the use made of a work in any particular case is a fair use, the 4 factor test is considered. 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. The nature of the copyrighted work; 3. The substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect on the potential market for or value of the copyrighted work.

B. Patents protects new inventions o Exclusive property rights in certain types of inventions may be secured under a federal patent. Issuance is given to a person who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. 35 USC 101. Applicant can receive a patent which is effective for 20 years from the application date filed with the US Patent and Trademark Office. US recognizes patents for the utilitarian goal of promoting the progress of science and useful arts. Assumption is that patent protection serves as an incentive for inventors to engage in creative effort; inventor is entitled to the fruits of his labor (brings up the right to exclude bundle). o o o Property Casebook Notes: *5 Elements of a Valid Patent (P.U.N.N.E.) 1. Patentable subject matter: 4 categories of inventions qualify: anyprocess, machine, manufacture, orcomposition of matter. Abstract concepts of math algorithms, scientific principles, and physical phenomena cannot be patented. 2. Utility: a patent may be issued only for a useful inventionone which offers actual benefit to humans. Virtually any invention provides some sort of minimal benefit, this element is rarely at issue. 3. Novelty: only a new invention may be patented. The PTO will examine prior art, or all inventions, patents, publications and the like that predated the invention, to determine if its novel. 4. Nonobviousness: an obvious invention does not qualify for protection. If the differences between the invention and prior art at the time of the invention would have been obvious to the person having ordinary skill in the area, the PTO will deny the application.

5. Enablement: the patent application must describe the invention in such detail as to enable any person skilled in the art to which it pertains to make and use the same. o Patent Infringement: 2 ways to show patent infringement: literal infringement or infringement under the doctrine of equivalents. An important part of the patent application contains the claimsthe exact content of the invention for which patent protection is sought. Typically each claim has 2 or more subparts called elements. Once approved, the claims are set forth in the patent. The claims in the patent delineate the scope of the protected invention. The owner of a patent may enforce his rights by bringing a lawsuit for infringement. The patent owner must, to meet the burden of establishing infringement, show the presence of every element or its substantial equivalent in the accused device. Doctrine of Equivalents: to show infringement under this doctrine, the patent owner bears the burden of proving that the accused product has the substantial equivalent of every limitation or element of a patent claim. The patent owner must show that the accused product performs substantially the same overall function or work, in substantially the same way, to obtain substantially the same overall result as the claimed invention. This doctrine hinders the unscrupulous copyist who could otherwise imitate a patented invention as long as she was careful not to copy every inconsequential detail of the claimed invention or to make some unimportant and insubstantial change to the claimed invention. C. Trademarks-protects words, names and symbols used by merchants o A trademark is a word, name, symbol, or device used to identify and distinguish the products of a particular manufacturer or retailer. Statutory trademark protection is obtained by registering the mark with a federal agency and using the mark in interstate commerce. Right to exclude or prevent competitors from using the same mark for their goods or services within a particular geographic area. May destroy right to use the mark by abandonment. Goals of trademark law differ from copyright and patent law (which seek to encourage creative efforts):

1) Protect consumer from being deceived into purchasing shoddy goods/services 2) Provide incentive for the trademark owner to produce quality goods/services by ensuring that the goodwill behind his mark will be protected.

o Valid Trademark Elements (D.N.F.): 1. Distinctiveness: a mark must distinguish the goods or services of one person from those offered by another person. 2. Non-functionality: trademark law does not protect a product feature that is functional b/c this area is governed by patent law. In general, a feature is functional if it is vital to the use or purpose of the article. 3. First use in trade: the right to a particular mark grows out of its use, not its mere adoption. Thus, the first person to use a mark for a good or service in a particular geographic market obtains rights to use the mark in that market. *Federal Lanham Act established an additional layer of protection for trademarks and created a national registration system. Registration provides benefits but is not required; an unregistered trademark is valid. o o Trademark Infringement: Plaintiff must prove 1)she holds a valid trademark with priority over the defendants mark and 2)the defendants use of the mark is likely to cause confusion or deceive consumers. Alternatively, a defendant may be liable for trademark dilution if his conduct blurs or tarnishes the plaintiffs famous mark. o o In most jurisdictions, a celebrity has a property right to the exclusive use of his name and likeness for financial gain. D. Rights of Publicity

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