PropertyProf Blog

Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Friday, May 13, 2011

Friday's Architecture Moment

Witold Rybczynski on the death of the McMansion.

Steve Clowney

May 13, 2011 | Permalink | Comments (1) | TrackBack (0)

Thursday, May 12, 2011

Tattoos & Copyright

Tyson&helm Mike Tyson is famous for a lot of things: his boxing, his pigeon racing, his taste for human flesh.  In the tattoo world, however, he's best known for his truly awesome face tattoo. 

In a strange turn of events, the artist that inked Tyson's face is suing Warner Brothers to stop the distribution of The Hangover II.  A character in that movie wakes up in Bangkok (after a long night of drinking) and finds his face mysteriously covered with a tattoo that looks very similar to Tyson's (If I had a nickel...).  The artist, S. Victor Whitmill, claims that Warner Bros. has illegally reappropriated his work and infringed on his copyright. 

Whitmill might have a good case;  He has a signed release from Tyson granting him ownership of the work, and the tattoo has a very prominent place in both the movie and the promotional materials.  Moreover, there's both scholarship (Christopher A. Harkins,Tattoos and Copyright Infringement: Celebrities, Marketers, and Business Beware of the Ink, 10 Lewis & Clark L. Rev. 313 (2006)) and caselaw (Gonzales v. Kid Zone, Ltd. and Transfer Technologies, Inc.) that suggests tattoos are fully copyrightable.

A couple of points here.  First, Whitmill's suit seems to violate a pretty strong social norm in the tattoo world.  As Pat Fish, a Santa Barbara artist notes, "Attempting to bring lawyers in always makes things worse.  They are Harpies, they shit on everything they feed on.  No one in their right mind would ever try to bring lawers into the tattoo world . . ."

Second, if you extend the reasoning here, could Whitmill keep Tyson from appearing in movies?  How does the tattoo copyright interact with Tyson's right of publicity?  Does Tyson have some kind of implied license to, ugh... use his face. 

Steve Clowney


May 12, 2011 in Intellectual Property | Permalink | Comments (1) | TrackBack (0)

Real Estate Organizations

Over at the Conglomerate, David Zaring is trying to get to the bottom of a mystery.  Why are Real Estate Companies called organizations?

New York City alone has the Durst Organization, the Brodsky Organization, the Trump Organization, &c.  Why are these called organizations?  It's not that they aren't also limited liability companies as well.  And it is the case that many non real estate firms will set up internal "real estate organizations" to manage their property.  But my quick search on Westlaw and through the websites of these companies didn't reveal the reason for the fashion for the "organization" moniker.  The question isn't easy to resolve via text searching ("organization" isn't very unique).  So I thought I might crowd-source the question.  Do our readers know the answer?

Steve Clowney

May 12, 2011 in Real Estate Transactions | Permalink | Comments (3) | TrackBack (0)

Wednesday, May 11, 2011

The Best Cities for Jobs in 2011

Joel Kotkin and Michael Shires of New Geography rank the best small, medium, and large-sized cities for job growth.  The take home point:

[N]o place displayed more vibrancy than Texas. The Lone Star State dominated the three size categories, with the No. 1 mid-sized city, El Paso (No. 3 overall, up 22 places from last year) and No.1 large metropolitan area Austin (No. 6 overall), joining Killeen-Temple-Fort Hood (the No. 1 small city) atop their respective lists. Texas also produced three other of the top 10 smallest regions, including energy-dominated No. 4 Midland, which gained 41 places overall, and No. 10 Odessa, whose economy jumped a remarkable 57 places. It also added two other mid-size cities to its belt: No. 2 Corpus Christi and No. 4 McAllen-Edinburgh-Mission.

Steve Clowney

May 11, 2011 | Permalink | Comments (1) | TrackBack (0)

Hirokawa on Sustaining Ecosystem Services Through Local Environmental Law

Hirokawa Keith Hirokawa (Albany) has posted Sustaining Ecosystem Services Through Local Environmental Law (Pace Environmental Law Review) on SSRN.  Here's the abstract:

In the early decades of modern environmental law, local governments retained their prerogative over community design and other essentially local matters, but were largely excluded from the debate on national environmental policy. More recently, environmental lawyers have reignited the question of how and where the local government regulation of land use impacts intersects with environmental quality. It is interesting to note that as the national dialogue has turned to the important role of local governments in achieving our environmental quality goals, there has been a corresponding emergence of an "ecosystem services" approach to understanding nature. It is more interesting to note how many of the stories of ecosystem services – successes, explanations, and illustrations – take place in local governments and in community decision making. Perhaps by coincidence, but likely due to design, local environmental law and ecosystem services have evolved in a complementary manner.

This article looks at the recent trends in recognizing and regulating ecosystem services at the local level. Local governments are adopting regulations aimed at capturing the benefits of functioning ecosystems by transcending aesthetic values of local nature and focusing on ecological processes and the services they provide. Section II introduces the topic by arguing that because of the manner in which local governments regulate environmental impacts, the value embedded in ecosystem services is commensurable with local regulation. Section III illustrates the relationship between local governance and ecosystem services, as well as the opportunities presented by this relationship, by examining some of the ways that local environmental law has embraced the advantages of an ecosystem services perspective. This article concludes that local governments are leaders in the implementation of ecosystems services-based regulation, that communities are the direct beneficiaries of such action, and that this is exactly as it should be.

Steve Clowney

May 11, 2011 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 10, 2011

The Sell-Off of Unused Federal Buildings

For now, the large swaths of federal land in the west appear safe.  Yesterday, however, the White House did announce that the federal government would sell 12,000 buildings that it no longer needs.  The properties range from sheds to office buildings to unused roads to empty warehouses.  Here's an interactive map that shows were the properties are located.  And this graphic breaks down the properties by type and location.  The administration argues that improving the management of surplus property can save taxpayers $15 billion over several years.

Matt Yglesias makes a nice point that the real gains of this program won't come in the budget:

At the end of the day, by far the biggest problem with having the federal government own a warehouse it’s not using is simply that the warehouse isn’t getting used. An old warehouse could be converted into condos or a police station or a rock club, but those aren’t the kind of things the federal government runs. A private individual might just lease the property out, but again the federal government’s not a commercial real estate manager. Selling the land and the structures is the best way to get the real resources back in circulation. And as always, real resources matter a lot more than budget line items. The government can conjure up more money any time it wants. The real resources available to the country are what’s in limited supply, and the real policy upside is in putting them to better use not obtaining more dollars.

Steve Clowney

May 10, 2011 | Permalink | Comments (0) | TrackBack (0)

Reiss Reviews "The Subprime Virus"

David Reiss (Brooklyn) has posted a book review - The Subprime Virus: Reckless Credit, Regulatory Failure, and Next Steps (Environment & Planning Journal) - on SSRN.  Here's the abstract:

John Godfrey Saxe’s 19th century poem, "The Blind Men and the Elephant," opens with six learned men Who went to see the Elephant (Though all of them were blind), That each by observation Might satisfy his mind. The financial crisis is the Elephant of our time. Over the last couple of years, more than six wise men and women have written books purporting to explain the financial crisis and many more such books are surely in the works. Most of these wise ones suffer from the same limitations as the poem’s learned men. As each reaches out, he or she can only make out one small part of Our Elephant - maybe the rampant fraud at mortgage origination or the distortions of short term profit-seeking or the complexity of the CDO2 - but go on to confidently opine on the essential nature of this beast. The SUBPRIME VIRUS is a cut above the books that have come before it because of its authors’ breadth of knowledge of financial institutions and consumer protection.

Steve Clowney

May 10, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, May 9, 2011

A Ground Zero Update

From the New York Times - and update on the rebuilding underway at the World Trade Center site.

Steve Clowney

May 9, 2011 in Articles, Real Estate Transactions | Permalink | Comments (1) | TrackBack (0)

Las Vegas and the Future of Water Usage in the U.S.

A quick article on how Las Vegas has become the most water smart city in the country:

It's illegal now to have a front lawn in any new home in Las Vegas. The water authority will pay people who already have lawns to take them out--$40,000 an acre-- and replace them with native desert landscaping. They pay golf courses to do the same thing. It is illegal to let your sprinkler spray water on a sidewalk or street, and Las Vegas specifies the kind of hose nozzle you can use to wash your car (trigger style, so it doesn't simply pour water out when you're not using it).

And a determined recycling effort has produced pioneering results: the Las Vegas metro area now collects, cleans, and recycles to Lake Mead 94 percent of all water that hits a drain anywhere in the city. Essentially, the only water that isn't directly recycled back to the source is the water used outdoors.

Steve Clowney

May 9, 2011 in Natural Resources | Permalink | Comments (0) | TrackBack (0)

Leoni on the Management of the Northern Forest

Ben Leoni (Vermont student) has posted Resolving Disputes in the Northern Forest: Lessons from the Connecticut and Moosehead Lakes (Vermon Law Review) on SSRN.  Here's the abstract:

The Northern Forest stretches across four states: from Northern New York, through Vermont, New Hampshire, and Maine. A historically undeveloped expanse of productive forestland, the Northern Forest has been owned and managed by pulp and paper companies for roughly a century. Recently, market forces have forced many of these companies to sell off substantial portions of their forestland to timber investment management organizations and private developers. As residential development threatens to change the character of the Northern Forest, the presence of these new owners has increased tensions between environmentalists, local land owners, and other stakeholders. This Note examines two recent land-use disputes among stakeholders in the Northern Forest. It then advocates using a consensus-building process of dispute resolution to reduce litigation costs, build working relationships, and produce creative solutions that substantively address stakeholder interests. This Note advocates a consensus-building approach for both private negotiations and provides guidance for its incorporation into a required agency regulatory framework.

Steve Clowney

May 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Royster on Indian Land & Water Management Issues

Royster-SM-164x122 Judith Royster (Tulsa) has posted Conjunctive Management of Reservation Water Resources: Legal Issues Facing Indian Tribes (Idaho Law Review) on SSRN.  Here's the abstract:

Conjunctive management is the integrated management of all water sources as a single system. As complicated as conjunctive management of state water resources is, things become even more complicated when conjunctive management involves tribal water resources as well. On virtually all Indian reservations, two governments exercise regulatory authority over some of the water allocation and use decisions. Those allocation and use decisions are based on different laws and different legal principles. To complicate matters further, surface water decisions may be made on a different basis than groundwater decisions and, even if the same legal regime determines both, the decisions may not be integrated with one another.

Against that background, Indian tribes face substantial legal impediments to conjunctive management of reservation waters. In particular, three aspects of federal and state law frustrate effective tribal participation in conjunctive management. First, Indian tribes are, in many instances, barred by federal action from creating comprehensive, enforceable water codes. Without a water code, management of any kind, much less conjunctive management, becomes problematic. Second, the reserved rights doctrine does not include a clear, universal right to groundwater. Instead, the determination of whether tribes have rights to groundwater as well as surface water is left to individual court decisions and settlement acts, with a resulting wide variation among tribes in groundwater rights. Because conjunctive management is the integration of surface and groundwater regimes, the variability of tribal rights to groundwater hampers comprehensive approaches. And third, the lack of conjunctive management in some states can impact tribal reserved rights to water. While states have long been legally obligated to protect tribal rights to surface water in their allocation of state surface water rights, protecting tribal reserved rights to all water sources requires states to take account of tribal rights in the states’ allocation of groundwater as well.

Steve Clowney

May 9, 2011 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)