Right to Exclude
What are the elements of trespass?
1. Intentional
2. Intrusion
3. Property possessed by another
What rights correspond to a fertilized IVF egg?
Interest in the nature of ownership. Not property or a person, they instead occupy a special category in between “property” and “person” because of their potential for human life. Both parents have an interest in the nature of ownership over them, but neither have absolute control.
What is a trademark and what does it protect?
Trademark is any word, name symbol or device that is used to identify and distinguish the goods sold by one person from those of others. Trademark protects consumers from being deceived into buying shoddy goods/services within a particular geographic area.
What is tenancy in common?
Each tenant has the right to possess the entire property and each tenant has a fractional interest in or share of the property. Default concurrent title.
What is the public trust doctrine?
Public right to gain access to water and wet sand areas through dry sand. The principle that the sovereign holds a natural resource in trust for the public, protecting the public’s rights to access and use the resource. The public trust doctrine provides that land covered by tidal waters, including the foreshore, is held in trust by the state for public use, encompassing navigation, fishing, and recreational activities.
What are the exceptions to the right to exclude?
-License (express or implied)
-Necessity
- Public Policy (mailmen/firefighters)
- Property open to the public
- Public property
Can you sell your kidneys? Blood?
No, you can donate your kidney and you can sell your blood or donate it.
What are the elements of copyright and fair use defense ?
CR: Original; Tangible medium of expression; Work of authorship
FUD: Character of use (Education?); extent of use; effect on market; and nature of CR work.
What are the elements required for the creation of a joint tenancy with the right of survivorship?
1. Time
2. Title
3. Interest
4. Possession
What is cultural property?
Cultural property holds that a particular nation, community, or ethnic group should have an ownership right over both tangible and intangible culturally significant items.
What are the elements for a necessity defense?
1. Clear and imminent danger
2. Reasonable belief trespass will directly abate danger
3. No other legal alternative to effectively abate danger
4. Legislature has not precluded a defense
What is the holding in Moore v. Regents of UC and how did the court decide?
Since Moore did not have possession of his cells after they were removed, Moor had to establish that he had an ownership interest in them. This is in doubt because: (1) no precedent to support the argument; (2) CA medical waste statute says patients have no ongoing property interests; and (3) the patented cell line cannot be Moore’s property since Golde developed it to be unique and human ingenuity was added. Moore has no property interest in his cells or the patent.
What are the elements of a patent?
1. Nonobviousness
2. Novel
3. Patentable subject matter jurisdiction
4. Utility
5. Enablement
Can you devise/descend a JTWROS? What property interest can you devise/descend?
No and Tenancy in common
What is actual and constructive ouster?
Actual ouster: When a co-tenant excludes another co-tenant from using the property. There would need to be an affirmative act to prevent another owner’s use or there can be constructive ouster.
Constructive ouster is a legal fiction to prevent unfairness when joint occupancy is unrealistic/impossible.
What is the majority and minority views of the right to exclude from property open to the public?
Majority: Absolute right to exclude unless prohibited by statute
Minority: No unreasonable or arbitrary exclusion
What is Arabian's concurrence in Moore v. Regents of UC?
Human body cannot be treated as a commodity unless legislature says so.
What is the holding in Diamond v. Chakrabarty?
A human made micro-organism is patentable subject matter. Congress intended statutory subject matter to include anything under the sun that is made by man. Here, the micro-organism is patentable because it is a product of human ingenuity that has a distinctive name, character, and use. Nature is not patentable subject matter!
What kind of shared property interests can sue for partition?
Tenancy in common and JTWROS
What are the different kinds of partitions? What are the elements to overcome the partition by _ _ _ _?
Partition in Kind and sale.
Sale: Property cannot be conveniently partitioned in kind; sale will promote interest of more than one party; and the sale will not prejudice the interest of others.
What three locations open to the public did we discuss in class and what were the respective holdings for each?
Company town: Right to exclude must be balanced against freedom of speech (Marsh v. Alabama)
Mall: Private property does not lose private character because the general public is invited to use it for designated purposes. (Lloyd v. Turner)
Casino: The more private property is devoted to public use, the more it must accommodate rights of the general public. (Uston v. Resorts International)
What is Mosk's and Broussard's dissent in Moore v. Regents of UC?
Mosk: Moore had a property interest in his excised cells and that allowing the researchers to profit off him was likened to slavery.
Broussard: He concurred that there was a breach of fiduciary duty, but disagreed with the rejection of the conversation claim. A patient should have a right to control their body parts before removal and failing to disclose the research violated that right.
What is patent exhaustion?
The doctrine of patent exhaustion allowed a purchaser, or subsequent owner, to use or resell patented items, not reproduction of the patented items.
Can you alienate/transfer/sell an interest in tenancy by the entirety? How can you end a tenancy by the entirety?
Yes, but you have to get permission from the entirety.
It can end by death, divorce, or agreement.
What are publicity rights and what two cases did we read about them? What were each of the holdings.
Protect a person's image and likeness; commercial use likeness/persona
MLK Center for Change: Private citizens have a right to privacy, and public figures have a right of publicity. The right of publicity survives death and is inheritable and devisable. The right of publicity does not have to have been used during one's life for it to be protected after death. Right to publicity was violated by sale of the golden bust.
Rosa Parks Institute for Self-Development v. Target: Privacy rights are not absolute and must yield to the qualified privilege to communicate on matters of public interest. The use of Rosa Park's name and likeness in books. movies, and plaque are necessary to chronicle and discuss the history of the civil rights movement