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Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Friday, January 20, 2012

The Steve Jobs Action Figure and White v. Samsung

 

SJfigure

 

We discussed the common law right of publicity today in class, particularly the 1993 9th Circuit Vanna White v. Samsung Electronics case.  If you aren't familiar with the case, Samsung had a national ad campaign which featured an image of a robot wearing a blonde wig, turning letters on a Wheel of Fortune-type board.  The campaign did not name White or Wheel of Fortune, but in the context, it is pretty clear that they meant to invoke White.  They even referred to the ad internally as the "Vanna White ad."  Underneath the image, the text read: "Longest running game show, 2012 A.D."  The class thought that bit was fairly funny.

We also discussed a ripped-from-the-headlines example of the Steve Jobs action figure.  The company "in icons" had proposed to sell the 1-foot, increadibly realistic action figure, beginning in February.  It received a cease and desist letter from Apple, threatening legal action.  After initially refusing to budge, in icons caved yesterday, announcing that out of respect for the Jobs family, it would not produce the figure.

Discussing the Jobs action figure after reading the White case was very effective, allowing us to debate drawing distinctions between property rules protecting the images of entertainment celebrities (like White) and public figures (like Jobs), the living and the dead, those who made money by selling their image, versus those who did not.  The same issues can be raised by discussing White v. Samsung and the Martin Luther King Jr. Center for Social Change case.

Tanya Marsh

January 20, 2012 in Personal Property, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 17, 2011

Waldeck on the Inheritance of Heirlooms

Waldeck_sarah_lg1 Sarah Waldeck (Seton Hall) has posted Rethinking the Intersection of Inheritance and the Law of Tenancy in Common (Notre Dame Law Review) on SSRN.  Here's the abstract:

The Article is about "identity property," which it defines as property that is strongly linked to one’s sense of self and family and is valued by its holder primarily for what it represents. Identity property is often jointly inherited by siblings or other relatives, who take as tenants in common. Standard doctrine relies on familial bonds and the unilateral right of partition to mitigate the problem of bilateral monopoly and to foster cooperation in the management of the tenants’ common resource. The Article argues that, in the context of identity property, this standard account is wrong. Rather, because the law favors partition by sale, the exit of one tenant often means that the remaining co-tenants will be forced to sell the identity property. Because the remaining tenants perceive the property as non-fungible, the threat of exit is powerful enough to exacerbate the bilateral monopoly and decrease the likelihood of cooperation. The Article relies on the example of the family cottage to elucidate the meaning of "identity property" and examines the formal agreements that relatives who jointly own cottages make when they decide to opt out of the tenancy in common default rules. These formal agreements reveal a willingness to sacrifice the right of exit in order to increase the odds that co-tenants will continue to own the identity property. The Article argues that the law should heed the message of these formal agreements and adopt a more flexible approach to the inheritance of identity property, including the possibilities of temporal partition and facilitated agreement.

Steve Clowney

May 17, 2011 in Gifts, Personal Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 13, 2011

Property Worth Saving, ctd

Last August, Tanya wrote a great post that asked,"What would you save if your house were on fire?"  For many families in Japan it appears that the question has become all too real.  The LA Times ran a heartbreaking story today about people who are making mad dashes into the radiation hot zone around the Fukushima Daiichi nuclear plant in order to save a few family treasures.  The paper reports:

On the drive to town, swaddled in clothing to protect them from nuclear fallout, [the Nikaidos] entertained a difficult question: How do you reduce a lifetime of memories and possessions into one mad-dash snatch and scramble?  "I'm going to get some dishes, clothes and my computer: everyday things I can use to start a new life," said Seiko, who along with her mother has relocated to just outside Tokyo. "We can come back to collect the rest, the memories; that is, if they ever let us return here again."

Steve Clowney

April 13, 2011 in Personal Property | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 6, 2011

Famous Objects From Classic Movies

Picture 3 Ji Lee's addictive game, Famous Objects from Classic Movies, is one part hangman, one part movie trivia, and one part commentary on how property gives meaning to our experiences.

The game is simple.  It displays a silhouetted image of an object and asks the player to determine what movie it comes from. Three wrong answers and you fail (and there are currently over 60 movies in the game's catalogue). 

I find it wonderfully surprising how the dark silhouette of a piece of property can serve as a shortcut for a whole range of sensory experiences and memories.  Strangely, I even managed deciphered a bunch of answers to movies that I've never seen.  We do see the world through property-shaped lenses.  

Steve Clowney 

 

 

April 6, 2011 in Miscellaneous, Personal Property, Property Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, August 19, 2010

Pierson v. Post Overturned!

Hot off the press from LawForAttorneys.Com

In what can be billed as one of the most surprising decisions handed down in recent memory, the ruling in Pierson v. Post, one of the nation’s oldest property-law cases, was reversed this week by the Supreme Court of New York. The court’s reconsideration of the ruling was prompted by new evidence arising from an in-depth autopsy analysis that was performed last month on the remains of the fox at the heart of the famed case. . . .

[E]arlier this summer at the request of Broderick Post, great-great-great-grandson of Lodowick Post, the remains of the fox were exhumed and analyzed, at a personal cost of about $1 million. The long-overdue autopsy found conclusive evidence that, by the time Pierson had discovered the fox, it had already died of exhaustion from Post’s pursuit. Post then petitioned the court to have the case reopened.

Read the whole thing for more on this shocking development in property law!

Ben Barros

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August 19, 2010 in Personal Property | Permalink | Comments (0) | TrackBack (0)

Sunday, August 1, 2010

What would you save if your house were on fire?

I am at the tail-end of packing up our house to move to Winston-Salem.  The truck comes on Tuesday!  For days, I have been categorizing my personal property into: (i) stuff we're taking; (ii) stuff that we don't need or want but someone might, i.e. Goodwill; and (iii) stuff we don't need or want and nobody else needs or wants.

I am struck and frankly embarrassed by the sheer amount of stuff that we have accumulated.  But this isn't a diatribe on the rampant consumerism of which I am equally guilty.  No, this task is super-boring, so I began trying to figure out a fourth category -- what would I save if the house were on fire?

Dispense with the easy stuff -- spouse, kids, pets.  Let's just focus on personal property.

The vast majority of stuff that I have is replaceable, given sufficient insurance proceeds.  I'm left with three categories of irreplaceable (or replaceable only at a time and expense that won't be adequately compensated by insurance): family heirlooms, art, and information (most of which is digitized).  I am struck by the contrast between the categories. 

I am the family historian, so I have LOTS of family heirlooms (just ask my husband).  Civil War discharge papers, family Bibles from the mid-1800s, a receipt for a land purchase in 1830, family photos from the turn of the last century, handwritten marriage certificates, deeds, wills, military papers.  My maternal grandmother's set of kitchen crockery and my paternal grandmother's wedding ring.  A cherry china cabinet made by my great-great grandfather in the late 1800s.  The desk from my grandfather's general store.  A lot of stuff.  So you can see that choosing five items from that assortment would be heartbreaking.  The china cabinet would have to burn.  Its just too darn heavy.

But the family heirloom category is other people's stuff that defines their lives.  What personal property defines mine?  Besides my wedding ring and the art that I've acquired or made, it would seriously have to be my iPhone.  Because the personal property that is most important to me is information -- pdfs, mp3s, jpgs.  My important personal property has been digitized and saved on a passport hard drive smaller than an index card.  As long as I grabbed that and my iPhone, and as many family heirlooms as we could carry (most of which are scanned in on that hard drive, btw) we'd be okay.

What five items would you save if your house were on fire? 

Tanya Marsh

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August 1, 2010 in Personal Property | Permalink | Comments (3) | TrackBack (0)

Tuesday, April 6, 2010

More on the Meteorite

Andrea Boyack (Catholic) has an interesting essay in the National Law Journal on ownership of the Lorton, VA, meteorite.  Check it out!

Ben Barros

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April 6, 2010 in Finding, Personal Property | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 3, 2010

Who Owns Meteorite, the Landlord or the Tenant?

A meteorite crashes through the roof of a commercial office building.  Who owns it, the landlord or the tenant?  According to this story, it may be that the landlord has a better claim.  However it turns out, it sure is an interesting fact pattern.

Ben Barros

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February 3, 2010 in Personal Property | Permalink | Comments (4) | TrackBack (0)

Monday, January 18, 2010

MacLeod on Suicide and Gifts Causa Mortis

Adam MacLeod (Faulkner) has posted A Gift Worth Dying For?: Debating the Volitional Nature of Suicide in the Law of Personal Property on SSRN.  Here's the abstract:

This article examines the debate in personal property law over the question whether suicide is ever a volitional act and the attendant issue whether a gift causa mortis ought to be enforced when made conditional upon an act of suicide. Scholars have missed substantial doctrinal changes in the law of gifts causa mortis during the last thirty-three years. These changes bear upon other contested, legal issues, such as the wisdom of legalizing assisted suicide.

The article tests the modern rule that all gifts made in contemplation of suicide are enforceable and the assumption on which this rule is predicated, namely that all suicides are wholly non-volitional acts, products of mental or emotional infirmities. It tests the assumption against human experience, other bodies of law, and the best contemporary learning of psychology and sociology.

The article also offers a new understanding of the traditional rule (voiding gifts conditioned upon suicide), answers a strong doctrinal criticism, and attempts to fashion a more advanced version of the traditional rule, which avoids the shortcomings of both the traditional rule and the modern rule. It posits a stronger doctrinal basis for the traditional rule: strict adherence to the Statute of Wills, to which gifts causa mortis constitutes exceptions, best protects the donor’s intentions.

The article examines a stronger policy basis for the traditional rule, namely that the traditional rule, like parallel doctrines in tort law, criminal law, and insurance law, affirms the intrinsic value of each human person. This teaching helps promote a cultural commitment to the dignity of all human persons and informs contemporary debates on more complex problems, such as the question whether our nation recognizes a fundamental right to assisted suicide. This article concludes with a proposed revision of the traditional rule that is intended to reflect and advance contemporary learning about suicide.

Ben Barros

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January 18, 2010 in Personal Property, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Friday, October 23, 2009

The History of Pierson v. Post

Daniel R. Ernst (Georgetown) has a fantastic summary of the recent scholarship on the history of Pierson v. Post in the Green Bag.

Ben Barros

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October 23, 2009 in Personal Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 29, 2009

Nelson on Virtual Property and the Rule of Capture

John William Nelson (Samford/East Anglia) has posted Fiber Optic Foxes: Virtual Objects and Virtual Worlds Through the Lens of Pierson V. Post and the Law of Capture on SSRN.  Here's the abstract:

Virtual worlds are more successfully blurring the lines between real and virtual. This tempts many to try and equate virtual property with tangible property. Such an equation creates problems when the common law of property is applied to virtual objects over which users can not possess complete dominion and control. The result is a conversion of the tangible resources that support virtual worlds into a virtual commons. Accordingly, the common law of contracts, rather than that of property, should be used to govern transactions between a user and owner of a virtual world.

Ben Barros

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September 29, 2009 in Intellectual Property, Personal Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 21, 2009

Merrill on Accession and Original Ownership

Thomas W. Merrill (Yale) has posted Accession and Original Ownership on SSRN.  Here's the abstract:

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But accession differs from first possession in that it does not presuppose that rights are established in an open access commons and does not require the performance of an act to establish ownership. These features of accession make it, as a rule, more efficient than first possession, at least where property rights are thick and securely enforced. More broadly, accession can be seen as the critical legal principle that generates the internalization function of property, insofar as gains and losses attributable to the management of resources are automatically assigned to the most prominently connected property by accession. Although the story of accession is generally a positive one from an efficiency perspective, it may be more problematic from several normative perspectives, which are briefly considered.

Ben Barros

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September 21, 2009 in Personal Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2009

Strahilevitz on The Right to Abandon

Lior Strahilevitz (Chicago) has posted The Right to Abandon on SSRN.  Here's the abstract:

The common law prohibits the abandonment of real property. Perhaps it is surprising, therefore, that the following are true: (1) The common law generally permits the abandonment of chattel property; (2) The common law promotes the transfer of real property via adverse possession; and (3) the civil law permits the abandonment of real property. Because the literature on abandonment is disappointingly sparse, these three contrasts have escaped sustained scholarly analysis and criticism. This paper aims to provide a comprehensive analysis of the law of abandonment. After engaging in such an analysis, the paper finds that the common law's flat prohibition on the abandonment of corporeal interests in real property is misguided. Legal rules prohibiting abandonment ought to be replaced with more a more permissive regime where what matters is the value of the underlying resource and the steps that the abandoning owner takes to ensure that would-be claimants are alerted to the resource's availability. Furthermore, the law of abandonment ought to be harmonized for real property and chattels. Finally, the paper criticizes the law's preference for adverse possession over abandonment as a means of transferring title in cases where the mechanisms might function as substitutes.

In the course of analyzing the law of abandonment and offering a qualified defense of the practice, the paper provides the first workable definition of resource abandonment, develops a taxonomy of existing regimes, suggests that the abandonment of positive-value real and intellectual property is surprisingly widespread, and analyzes the costs and benefits associated with abandonment. The paper explores at some length the factors that will determine whether an owner opts for abandonment or other means for extinguishing his rights to a resource, as well as the considerations that should drive the law's receptivity to these efforts. The latter include the decision costs, transaction costs, decay costs, confusion costs, lawless race costs, and sustainability issues associated with abandonment. In addition, readers who make it through the paper will be exposed to pertinent tidbits concerning the social norms of geocaching, the anthropology of "making it rain," the unfortunate decline of municipal bulky trash pickup, Mississippi's misguided livestock laws, and the dubious parenting choices of Jean-Jacques Rousseau.

Ben Barros

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March 3, 2009 in Personal Property, Property Theory, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2008

First Circuit's Decision in Vineberg v. Bissonnette

How did I miss this?  Last month Judge Selya wrote an opinion affirming a summary judgement award of a painting that Max Stern, an art dealer, was forced by the Nazis to sell at below fair market value in 1937.  The opinion is here.  (Thanks to a link from the Illicit Cultural Property blog.)  There's a lot of stuff in there, though the opinion focuses on a laches argument that the possessor of the property made against the Stern estate's replevin claim.  (I know, I know--laches is an equitable defense and replivin is a legal action.  I had the same reaction.  But the district court allowed the argument and so did the first circuit.)

The possessor of painting ("Girl from the Sabine Mountains") is German baroness Maria-Luise Bissonnette.  She inherited it from her mother in 1991.  Bissonnette's step-father purchased the painting in 1937.

Alfred Brophy

December 11, 2008 in Personal Property | Permalink | Comments (1) | TrackBack (0)

Sunday, November 9, 2008

Never Forget The True Owner In Finding Cases

A while ago, we noted a dispute between a contractor and a homeowner about a bunch of 1920s currency found in a wall.  Classic finder v. owner of the locus dispute, right?  Well, the publicity generated by the dispute brought the true owner's descendents out of the woodwork, and they'll get a share.  Of course, the lawyers will probably get the biggest share.

Ben Barros

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November 9, 2008 in Personal Property, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2008

Yankee Stadium Home Run Baseball Dispute

From the NY Times:

Yankees catcher José Molina hit the last home run at Yankee Stadium. That is not in dispute. Who should have pocketed the ball seems to be.

In Sunday night’s Yankees-Orioles game — the last baseball game in the long history of the ballpark in the South Bronx — the ball that Molina hit in the fourth inning soared over the left-field fence, and ended up in a net over Monument Park.

As Molina ran the bases, there was the usual skirmish in the stands. Arms-in-the-air fans did what fans do when a ball is headed their way: They craned their necks, reached up and tried for the catch. So did Orioles left fielder Jay Payton, on the field.

But it was the net that made the catch.

Fingers poked through, or tried to. Some might have even touched the ball. It stayed put.

A fan, identified by news organizations in Wyoming as Steve Harshman, a state legislator and a high school football coach, staked his claim. “I had the ball on the net and I said, ‘Well, I’m going to pull it right through this netting,’ ” Mr. Harshman told station KCWY-TV in Casper, Wyo.

A security worker warned him not to rip the net and to let the ball go, Mr. Harshman added. He said he was reassured by the workers, who told the crowd, “It’s his ball.” Then the workers told him, “You just release it when you’re ready,” he said. When he did, “a guy” jumped up and grabbed, it.

“It went right into my hands,” said Paul Russo, 31, a schoolteacher in the Bronx and a lifelong Yankees fan. “I have possession of the ball. I’m like, wow.”

Two security workers ordered him to hand over the ball, he said — for safekeeping, he figured.

But then the unthinkable — to him — happened. “They flip it to this other fan,” he said. “I’m like, ‘What are you doing?’ ” . . .

All that left Mr. Russo considering options like going to court to ask for custody of a baseball. . . .

Yankee Stadium had a long-established procedure for when a ball is caught in a net and a fan reaches into the net to grab it, according to Howard J. Rubenstein, a spokesman for the Yankees.

He said that the guards were instructed to tell a fan to let go of the ball, and once it was free of the net, a guard would return it.

The fan “doesn’t give up his ownership, he only gives up custody,” Mr. Rubenstein said. . . .

Legal experts have studied this kind of thing. Paul Finkelman, a professor at Albany Law School, was quoted in a Cardozo Law Review article titled “Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?” The article described a symposium that touched on Barry Bonds’s 500th career homer.

As for the Molina homer, Professor Finkelman said, “it appears to me that when it went into the net, it went into the legal possession of the New York Yankees, and if stadium officials retrieve the ball and say ‘We’ll give it to you’ — whoever they’re pointing to — they have the right to do that.”

I'm not sure Professor Finkelman is right about why Harshman owns the ball, but I agree with the result -- I think that the Yankees had a policy to abandon their claim to balls in the net, and that Harshman got possession by stopping the movement of the ball.

Ben Barros

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September 24, 2008 in Personal Property | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 27, 2008

Fernandez on Pierson v. Post

Angela Fernandez (U. Toronto) has posted The Lost Record of Pierson v. Post, the Famous Fox Case on SSRN.  Here's the abstract:

Pierson v. Post, the famous fox case, has been reproduced in countless law school casebooks and written about endlessly in law review articles. A surreal air has hung around the case, in large part because scholars interested in it could access little more than what appeared in the reported appellate case at the New York Supreme Court in 1805, the rarefied "high law" in the case. Any documents setting out what happened at the lower court level were presumed lost. The judgment roll has now been found and is being made available to scholars for the first time. This article is a report on the discovery of that lost record and an introduction to the record highlighting the new information it gives us about the case. This is the "low law" we knew nothing about, specifically, the account of Post's jury trial before a Justice of the Peace, the amount of money he was awarded, and the grounds of Pierson's appeal. The new record does not answer all the questions we might have about this famous case. However, it provides much in the way of important new information that was previously unavailable to those with an interest in the case.

Ben Barros

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August 27, 2008 in Personal Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, August 7, 2008

Who Owns Animals?

Here at propertyprof we talk about things like who owns native culture (and who owns American folks culture--in the form of the game of monopoly)?  Now, our friends over at The Slippery Slope have a podcast with animal rights lawyer Adam Karp about companion animals and the rights related thereto.

Alfred Brophy

 

August 7, 2008 in Personal Property | Permalink | TrackBack (0)

Monday, June 9, 2008

Griffey 600th Home Run Baseball Dispute

Looks like we might have another case about everyone's favorite fugitive resource.  From CNN.com:

Controversy ensued in the stands following the home run. Justin Kimball, a 25-year-old from Miami, said he caught the home run ball, put it in a wool cap and then had the cap ripped from his hands. Kimball said someone ran off with the ball.

Police said they had found the fan with the baseball and would look at video tape to see if Kimball's claims could be supported.

However, the Florida Marlins announced Major League Baseball had authenticated the home run ball for a middle-aged male fan who would only give his first name as Joe.

Ben Barros

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June 9, 2008 in Personal Property | Permalink | Comments (1) | TrackBack (0)

Thursday, April 5, 2007

Property Students in Second Life

At Terra Nova, Rachel Goda has an interesting post on sending first year property students into Second Life to see how property concepts are reflected in the virtual world.  Hat tip:  David Post at the VC.

Ben Barros

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April 5, 2007 in Intellectual Property, Personal Property | Permalink | Comments (0) | TrackBack (0)