Unit 2 Flashcards
(41 cards)
Possession of Unowned Property
First possession is the general basis of ownership of unowned property, but “possession” can be rotted in one of two legal doctrines: (1) Capture (intent + control) or (2) Accession (constructive possession via other owned property - fixture, increase, ratione soli, ad coelum)
Finders Keepers Theory
If you find lost property, you have superior rights against everyone but the true owner of the property
Duration of holding it typically doesn’t take ownership over true owner unless there’s some state statue
Armory v. Delamirie: a finder (involuntary bailee) has a superior right to property against all but the true owner & any prior possessors
Clark v. Maloney: a finder has a superior right to property against all but the true owner and any prior possessor. First in time, first in right
Relativity of Title:
-True owner
-First finder
-Second finder
Benjamin v. Linder Aviation, Inc: first finder has the superior right (over all but the true owner) to lost property but if the property is mislaid, then the owner of the locus in quo (owner of place it was found) has the superior right - true owner can retrace steps & it’ll be easier to find
Rule: trespassers don’t get rights to things found on property
Rule: landowner has superior claim to things found in private spaces (don’t want to incentivize people to trespass on land & chain of ownership - protects true owner to have property owner have more relative ownership than the finder)
Bailment
Lawful possession of property by a non-owner
Doesn’t mean loss of ownership
Voluntary bailee: I know who has my stuff & they know whose stuff it is
Involuntary bailee: I don’t know who has my stuff
What if property is stolen?
a prior possessor (even a tortfeasor) has a superior right to property against a later converter
Relativity of Title:
-True owner
-First converter
-Second converter
Lost vs Mislaid Property
Lost: Property is lost when the owner unintentionally & involuntarily parts with its possession & doesn’t know where it is
Mislaid: Mislaid property is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is
Relativity of Title: Capture vs. Accession
Capture
- Lost item
- Fugitive unowned resource
- Unowned place
- Abandoned property
- “Treasure trove” (maybe)
Accession
- Mislaid item
- Situate unowned resource
- Embedded (part of the land/fixture)
- Private place (landowner rights will seem more superior (esp if in private place)
Treasure Trove
Almost always currency
- Coins, currency, precious metals, jewels
Item concealed by owner, assume owner is dead
- Need assumption of antiquity (something old)
- Deliberately hidden for a loooong time
Salvage
Finder’s salvage reward
Patent
For inventions
For a patent to be granted, it must be: (1) new, (2) useful, & (3) non-obvious
Patents may not be renewed upon expiration, & instead enter into public domain
Diamond v. Chakrabarty: anything that is manufactured by people is subject to be patented, & things occurring naturally, physical phenomena, & abstract ideas can’t be patented
Absent ideas aren’t patentable
Article I, Section 8 of the US Constitution: doesn’t create patent protection but creates power to protect/permits Congress to create protections
Tension between wanting publicly available inventions vs protecting it
What property theory justifies patent protection?
Labor Theory: the work is all in your head but a lot of main work isn’t so much the grunt work, it’s I’m thinking about how to do it & coming up with it
Utilitarian Theory: the public should benefit from your labor in intellectual property to benefit society at large
Kind of like Finders Keepers Theory: you get reward for “discovering” - exclusive control & license out use for certain amount of time
Content of patent law
Whoever invents or discovers any new & useful process, machine, manufacture, or composition of matter, or any new & useful improvement thereof, may obtain a patent therefore
You have to apply for patent: make claims of what you’re asserting is the new process or patentable thing about what you’re submitting
How you get patent protection: (1) invent something new, non-obvious, & useful; (2) file a patent application (USPTO); & (3) USPTO approves the application
Patent lasts for 20 years (wasn’t designed to secure inventor in his natural right but rather as a reward) (not necessarily the perfect time)
The American Invents Act
Established a first-to-file system -> changed it from the prior first-to-invent approach
Copyright
For creative works
How to get copyright protection: Can file to have copyright registered but you don’t have to. Anyone automatically has copyright protection if it’s eligible whether you file it or not
Duration: life of author + 70 years
Even during copyright period, other people might have right to use copyrighted material without violating your right
Article I, Section 8 of the US Constitution
What property theory justifies copyright protection?
Labor Theory
Utilitarianism
Types of Copyright Protections
- Literary works
- Musical works
- Dramatic works
- Pantomimes & choreography
- Pictorial, graphic, & sculptural works
- Motion pictures & other audiovisual material
- Sound recordings
- Architectural works
Defenses to Copyright Infringement
Fair Use
Idea-Expression
Copyright Defense: Fair Use
You may use copyrighted material for research, education, criticism or parodies
- Nature & character of the use (non-commercial vs commercial use, transformative, parody)
-Not just copying it, creating from this some other thing
-Derivative work: using work but adding substance to it your own. But can still tell it was based on something else. Need permission for this - Nature of the copyrighted work (fact-based work (such as research - you’re describing data that people could use) vs purely creative)
- Amount & substantiality used (minimal vs substantial, “heart of the work”)
- Effect on the market
Copyright Defense: Idea-Expression
Copyright doesn’t protect ideas, it only protects the particular expression of the idea
In theory, allows other artists to build upon the same ideas, so long as they’re expressed differently
First Amendment: you have a right to express yourself & we can’t have copyright to overcome that
Trademarks
Unique symbols, pictures, or words that sellers use to distinguish their products from those of their competitors
With trademarks, it’s about sellers distinguishing their products for sale - therefore commerce (regulating of trade)
Public policies served by trademark law: protects the consumer (from confusion) & protects company (protects the good will that company created)
Qualitext Co: A single color can be trademarked if it has acquired secondary meaning (i.e. consumers associate it with a specific brand)
Trade dress: the overall look & feel of a product or packaging that signifies its source. It can include colors, shapes, designs, & even store layouts
Service mark: functions like a trademark but applies to services rather than goods. Uses the same legal framework as trademarks
You can have trademark that’s not registered.
Have to prove: you’re using it in a particular context & it’s associated with you
A trademark is considered abandoned if it’s not used for 3 consecutive years with no intent to resume use (Lanham Act § 45)
Article I, Section 8 of the US Constitution
What property theory justifies trademark law?
Labor Theory
The Lanham Trademark Act
Protects a distinctive mark
Grants exclusive right to use the mark in commerce
Allocated to the first to use the distinctive mark
No inherent duration for this “property” right
Unless it’s lost, it doesn’t just go away with passage
Trademark right -> trademark registration (follows the copyright approach because it’s creating & using it)
What makes a mark distinctive?
Distinctive meaning kind of catchy/sticks out in mind but also distinct from anyone else
3 kinds of mark: fanciful (coined terms); Arbitrary (unusual context of word); Suggestive (marketing via imagination)
But if it becomes too used, it can become generic & lose its trademark
Mark cannot be for something that’s merely descriptive or generic (if so generic it loses its distinctness, it loses its trademark)
A person’s likeness in regards to trademark
ETW Corp v. Jireh Publishing: (1) as a general rule, a person’s image or likeness can’t function as a trademark; (2) an artist’s rendering of a celebrity enjoys First Amendment protection when the artwork adds significant expression beyond a literal depiction or imitation of the celebrity & thus trumps the celebrity’s right to publicity
Infringement by blurring, tarnishment, freeriding with trademarks
Dilution: tarnish name, blur good will people have with that product. Asking “are you devaluing trademark?” Protecting owner’s value
Deception: Asking “are you confusing the public?” Protecting consumer’s value
