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21 Cards in this Set
- Front
- Back
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The law of property
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is the law of acquiring, possessing, using or alienating (disposing of) rights in things. Do not own the land itself, do not have any interest in the land…ever But do own rights to the land
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1. Real – land and fixtures there to 2. Chattel – anything that can be owned that isn’t real property, movable property (personal property including intellectual property) |
1. Real – land and fixtures there to
2. Chattel – anything that can be owned that isn’t real property, movable property (personal property including intellectual property) |
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1. Individual –
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undivided share (100% ownership) you make the decisions and bare the risks
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2. Tenancy in Common
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– (not only applied to property, can be applied to stocks, cars, etc.) partial or “percentage” ownership and liability; percentage may be different for each tenant; individually alienable (can alienate your percentage and your percentage only)*tenancy means to have rights to ownership
Tenancy in common is the default relationship |
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3. Joint Tenancy
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– each tenant has an equal share of the entire property. May be alienated, but converts to TIC. Right of survivorship available if property is taken with that designation.
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4. Tenancy by the Entireties
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– (real property only; not all jurisdictions recognize) only possible at common law between married persons. Usually construed only to cover the holding/tenancy of the marital property (ex. your home). Public policy idea of protecting the marital home over any individual claim a creditor may have. Debt collectors cannot seize the house unless the debt is joint like on the mortgage.
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With real property, you may have a freehold (or ownership in fee)
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this is the highest form of “ownership” available because of the bundle of rights (an estate) you have- full use, enjoyment, profit, alienability. Freehold ownership may be limited by certain easements or servitudes (sidewalk public easement, power lines) or by contact (Homeowners associations – more recent phenomenon!), however.
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If you don’t have a freehold, you will probably have a leasehold, then.
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You are the lessee, your landlord (the fee owner) is the lessor. You get rights of use and enjoyment, may get profits – can’t alienate! (at CL, you could sublet unless prohibited by the landlord. This rule is largely followed).
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Why are You Torturing Me with this Stuff? ):
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Business owners need to understand forms of ownership, at the very least, because business real property is subject to these rules, as are stocks, as are partnership assets at Common Law (although we’ll see in Business Incorporations how this can be altered). Some other important things, too!Some of the most important rules regarding ownership of intellectual property – “property resulting from intellectual and creative processes” are, like real property rules, not really ownership of a tangible thing (and of course, intellectual property or IP is far less tangible than real estate!). Instead, think of “ownership” as being either exclusive or shared possession of that “bundle of rights” to do with (or not) as you please with the thing over which you claim “ownership”.
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Intellectual Property
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1. Trademarks – distinctive word, symbol or design to identify use in commerce (also trade names, “trade dress” – unique way of product appearance ex. shape of goldfish. Associated with term “service mark” – instead of a good, it’s a service) name is actively being used in some sort of commercial enterprise. Can’t mark common words, but can mark a combination of common words.
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2. Patents
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– grant of exclusivity in manufacture, use and sale of an invention for a specified period of time. If you register it the government with grant you rights for a certain period of time. Can’t produce a lower priced, generic version of the drug. Patent cliff – a single patent for a really big revenue drug or a few patents for well doing drugs that expire at the same time, patents expire and then revenue drops when generic version is created and sold
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3. Copyrights
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– grant of exclusivity over publication/printing, sales, distribution, use of literary or artistic work for a specified period of time.Not the US patent and trademark office, handled by the US copyright office.
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Statutory Protection of Trademarks: Lanham Act of 1946
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provides federal protection of manufacturers from losing business to rivals that used confusingly similar trademarks. Its not the name necessarily or using a similar logo, but the likelihood of confusion to a reasonable person (the public’s mind)
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Trademark Dilution: Federal Trademark Dilution Act (1995)
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Trademark Dilution Revision Act (TDRA) (2006) worked out the bugs in the 1995 act. Specified 4 Elements of a Trademark Dilution Claim:
1. Ownership and use in commerce of a distinctive mark 2. Competition use in commerce of an identical or similar mark 3. Similarities give rise to reasonable association Would a reasonable person see both marks and thing they had something to do with the same company 4. Association has or likely to impair/harm distinctiveness or reputation of original marks |
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Patents
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a government grant that gives inventor the exclusive right to make, use, and sell an invention for 20 years (designs = 14 years). Patent Act of 1790 (and subsequent iterations) People who invent first get protection.
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America Invents Act (Leahy-Smith Act) (2011):
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first to file (not invent) received protection.
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Copyrights
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an intangible property right granted by federal statute to the author or creator of a certain literary or artistic productions. Current major act is the Copyright Act of 1976 but it has undergone major statutory revision – particularly with the rise of digital/streaming media. Most well known: DMCA Digital Millenium Copyright Act Applies to: literary works, musical works, dramatic works, pantomimes/choreographic works, pictorial, graphic, sculptural works, motion pictures and other audiovisual media, sound recordings, architectural worksCan’t copyright an idea (not a fixed medium). You can copyright the fixed expression of that idea, however.
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Copyrights
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Rightsholders get five basic rights:1. The right to reproduce the copyrighted work2. The right to prepare derivative works based upon the original work (ex. sequels or prequels)3. The right to distribute copies of the work to the public4. The right to perform the copyrighted work publicly5. The right to display the copyrighted work publiclyCopyright Infringement: doesn’t require intent; any infringement is actionable by actual or statutory (up to $150k) damages. Intentional act may bring criminal penalties, though.
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Copyrights and Statutory (or Compulsory) Licenses
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Some patents may be subject to compulsory licenses too – these are statutorily – granted licenses to use IP by third parties regardless of the wishes of the rightsholder.
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The “Fair Use” Exception:
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use must be similar to “criticism, comment, news reporting, teaching, scholarship, research.” Note the “balancing test” used by courts – (1) purpose and character of use; (2) nature of the copyrighted work used; (4) effect of the use upon the market for or value of the copyrighted work. Created because there has to be some sort of restrictions. So you must allow some sort of limited use of your work; a “limited license”
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First Sale Doctrine:
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owner of a lawful copy of a writing or phone record may sell (or otherwise dispose of) that copy. You own the physical media, but you still don’t own the IP on it!Applies to fixed media (records and cds). Allows you to sell the media the first time without getting in trouble
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