Possession Flashcards
(22 cards)
Acquisition by Discovery rule
Indians do not have the power to grant land, therefore, a title obtained from them cannot be sustained in the courts of the United States
Acquisition by Capture rule
Unowned property that is captured becomes the property of the person effecting the capture. The unowned thing must be actually possessed for it to become property
Definition of copyright
the right to control the reproduction and distribution of the creation
3 elements of copyright protection
1 - originality - work must be an independent creation of the author and must demonstrate at least some minimal degree of creativity (KEY)
2 - work of authorship
literature, musical, movie, etc
3 - fixation - the work is fixed in some kind of tangible medium (print, CD, hard drive)
3 elements to establish copyright infringment
1 - ownership of valid copyright
2 - work is copied
3 - copy is an improper appropriation
Does copyright protection extned to works without originality (like facts?)
NO
3 elements to establish copyright infringement
1 - ownership of a valid copyright
2 - work is copied
3 - copy is an improper approriation
4 factors to determine whether there is “fair use” of a copyright
1 - the purpose and character of the use - profit or non-profit?
2 - nature of the copyrighted work - was the work factual or narrative/fantasy?
3 - the substantiality of the portion used in relation to the copyrighted work as a whole - quality/quantity both matter
4 - the effect on the potential market for or value of the copyrighted work
5 requirements for patentability (PUNNE)
1 - patentability - fits into one of the general categoires of patentable subject matter (process, machine, mfg, composition of matter)
2 - novelty
3 - utility
4 - non-obviousness - most important requirement - sufficiently big tech advance over prior or current comparison
5 - enablement - application must describe the invention in sufficient detail that one of ordinary skill would be able to use the invention
Why can bio-engineered bacteria be patented?
because they are non-naturally occurring - there is human added engineering
Definition of trademark
refers to any work, name, symbol, or device used to identify particular goods and their source
3 requirements of trademark protection
1 - distinctiveness
2 - non-functionality
3 - first use in trade
Basic rule for finding
finder’s title is good against the whole world except the true owner
Do property owners need to physically possess the property in order to have a claim to a found object?
Yes - Hannah v. Peel (soldier’s brooch)
Lost property found in public places goes to…?
Finder
Does mislaid property found in public places go to the landowner?
Yes - property that was voluntarily placed in the shop goes to the OLIQ (left on table)
What happens to lost property found in land open to the public?
It depends on the exclusivity of the property (found on ground?)
Lost v. Mislaid v. Abandoned
Lost = lost involuntarily Mislaid = voluntarily laid somewhere and forgotten about Abandoned = true owner is no longer seeking the property
Elements of Adverse Possession
1 - actual and exclusive - did a party actually possess the land and did they try to exclude people from it?
2 - open and notorious - was the ownership secretive. was it notorious to the actual owner of the land?
3 - continuous for statutory period - IL = 20 years for land, 5 years for property
4- Adverse/hostile/claim of right - state of mind of adverse possessor - good faith, objective, aggressive trespasser
Tacking and AP
an adverse possessor may tack his possession onto that of a prior adverse possessor so long as the two adverse possessors are in privity (transferred possession from one to another)
Howard and Kunto - AP
Must use property for what the property would normally be used for - vacation property, hunting property, etc
When does AP clock start ticking?
usually when the adverse possession first begins. If owner is legally disabled (imprisoned, insane, etc)… the owner is given an extended period of time
