Property Law Outline
Chapter 1: The Concept of Property
1.1
Theories of Property Law
1. Protect First Possession
2. Encourage Labor Economic Efficiency - to advance specific economic policy (Labor)
3. Maximize Societal Happiness
4. Ensure Democracy - Distributional Fairness. To facilitate equality of opportunity/access
5. Facilitate Personal Development
*Property law favors highest/best use of land.
1.2
Rule of Capture
Acquire best right to property through capture.
Property rights in wild animals established by occupancy - Mortally wounding or killing the wild
animal would be sufficient to show possession since this limits the natural rights of the animal.
However, who captures it, has possessed it.
1. Is the rule of capture a good one for assigning rights in un-owned property?
2. Advantages of favoring possession?
a. Administrative - less waste of court time
b. Effective - reduces the number of foxes
3. Advantages of labor and investment?
a. Fairness
Under rationle soli, if wildlife in on your land, you have best rights.
Case
Post v Pierson - Mere pursuit of the fox gave Post no legal right to the fox, but the fox
became the property of Pierson when he intercepted and killed the fox. Mortally wounding
or killing the wild animal would be sufficient to show possession since this limits the
natural rights of the animal. However, who captures it, has possessed it.
1.3
Rule of Right to Publicity
Laws governing Right to Publicity:
1. CA Civ Code §3344 elements (statutory law)
2. CA common law right of publicity elements (common law)
3. Lanham Act, 15 U.S.C. §1125 (Federal Law) – Not discussed
1. Elements of Statutory Law (CA Civ Code §3344):
Any person who
(1) knowingly uses another’s name, voice, signature, photo, or likeness, in any
manner, ...
(2) for purposes of advertising or selling, ...
(3) without such person’s prior consent...
(4) shall be liable for any damages sustained by the
... person(s) injured as a result thereof.”
Property Law Outline
2. CA common law right of publicity elements
The common law right of publicity cause of action may be pleaded by alleging:
(1) the defendant's use of the plaintiff's identity;
(2) the appropriation of plaintiff's name or likeness to defendant's advantage,
commercially or otherwise;
(3) lack of consent; and
(4) resulting injury.
Case
White v Samsung - The court found that the fact that the robot in defendants' ad was
wearing a long gown, blond wig, and jewelry; was turning a block letter on a game board;
and was standing on what appeared to be the set of Wheel of Fortune constituted
sufficient facts of “identity” to establish a common law right of publicity claim. However, it
did not meet the narrower definition of “likeness” from CA Civic Code.
1.4
Rule of Right to Transfer
The right to Transfer – Called alienability. Public policy limits scope. The law regulates what (a
will, prevent fraud) can be transfers and who (insanity) can transfer/obtain property.
Implications under the rights approach:
-
Property rights are defined by government
Property rights are not absolute
Property rights can be divided
Property law evolves as law changes
Rule
Owners can freely transfer/alienate property to anyone. However, this not
absolute.
Case
Johnson v M’Intosh – Discovery gave better property rights to the land.
[As a result of “discovery” by England, the rights of Native American tribes] to
complete sovereignty, as independent nations, were necessarily diminished, and their
power to dispose of the soil at their own will, to whomsoever they pleased, was denied
by the original fundamental principle, that discovery gave exclusive title to those who
made it.
Property Law Outline
…It has never been doubted, that either the United States, or the several States,
had a clear title to all the lands within the boundary lines described in the treaty [with
Great Britain], subject only to the Indian right of occupancy, and that the exclusive power
to extinguish that right, was vested in that government which might constitutionally
exercise it.
Case
Moore v Regents of the UC
To establish a conversion, plaintiff must establish an actual interference with his
ownership or right of possession.
1. The right to Exclude
2. The right to Use
3. The right to destroy