PROPERTY I DAVIDSON - FALL 2004 - A

PROPERTY I DAVIDSON - FALL 2004 - A - PROPERTY OUTLINE...

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PROPERTY OUTLINE ACQUISITION BY CAPTURE A. “Rule of First Possession:” AKA Corporal Possession; A property right in a wild animal (animal ferae naturae) is established by possession or by significantly limiting the animal’s freedom by mortally wounding it or trapping it. ( Pierson ) B. The “Rule of First Possession” has also been applied to natural resources such as oil and gas( Hammonds ), but this has been rejected by many jurisdictions. Some reject because they do not want to deny society the benefits of underground oil/gas storage. 1. “Ad Coellum:” A person who owns property owns from the heavens to the center of the earth e.g. mineral rights, air rights. EXCEPTIONS A. Custom within an industry or community can be used to justify an exception to the rule of first possession, when the effect of the exception is limited/narrow. ( Ghen ) B. When a wild animal is on private property the property owner has property rights to the animal. Constructive possession. ( Keeble ) C. One who hinders another in his trade is liable for damages. Court can set aside possession. ( Keeble ) ACQUISITION BY CREATION A. A news organization retains quasi property rights to news gathered and distributed by its organization against other news organizations but not against the public. ( International News Service ) This created s common law rule for intellectual property e.g. patents, copyrights, trademarks. Patents -Protect novel, useful, and non-obvious processes or products Copyrights -Protect the expression of ideas Trademarks -Protect the graphic representation of an entity B. Absent statutory protection or unfair trade, competitors at common law had a right to copy a product once it was put on the market. ( Cheney ) This favors a statutory regime for intellectual property. C. The law protects internet domains names under the Anitcybersquatting Consumer Protection Act. The ACPA provides that a person is liable to the owner of a protected mark if that person: (i) has a bad faith intent to profit form the mark, and (ii) registers, traffics in, or uses a domain name that-(I) in the case of a mark that is distinctive…, is identical or confusingly similar to that mark; (II) in the case of a famous mark…, is identical or confusingly similar to or dillutive of that mark. There is no bad faith when the person believed or had reason to believe that use of the domain name was fair and lawful. ( Virtual Works, Inc. ) D. The law provides protection for property rights in celebrity personas. 1
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E. One does not retain a property right in cells taken for medical use, but a person must give informed consent for use of the cells. ( Moore ) ADVERSE POSSESSION If a person who does not own land possesses it for the period of time specified in the applicable statute of limitations, then that person acquires title to the land.
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