BUSA311: Exam 4 Study Guide

Question: "Hey, Paula," a pop hit that spent months on the music charts, was back on the radio 30 years later, but in a form the song's author never intended. Talk-show host Rush Limbaugh played a version with the same music as the original but with lyrics that poked fun at President Bill Clinton's alleged sexual misconduct with Paula Jones. Has Limbaugh violated the author's copyright? Strategy: Although this example may look like a copyright violation, it falls under an exception.

Parody (especially about politics!) is a fair use of copyrighted material so long as use of the original is not excessive.

An electronic will is valid a. only if it is printed out and signed by the testator. b. if there is an audio or video recording of the testator signing the will. c. only if the witnesses were in the same room as the testator when he signed the will. d. if the will is in any way legible, including in computer code. e. if the will is signed with any tangible symbol as long as the symbol was created with the intent to validate the will.

e

Question: Josh was a grouchy fellow, often at odds with his family. In his will, he left his son an autographed copy of his book, A Guide to Federal Prisons. He completely omitted his daughter, instead leaving the rest of his substantial estate to the Society for the Assistance of Convicted Felons. Which child fared better? Strategy: Pretermitted children fare differently from those named in the will.

Because the son was not totally omitted from the will, he is entitled to nothing more than the book, while the daughter who was not mentioned in the will gets more than her brother—she receives whatever share she would be entitled to if Josh had died intestate.

Question: In 1572, during the reign of Queen Elizabeth I of England, a patent application was filed for a knife with a bone handle rather than a wooden one. Would this patent be granted under current U.S. law? Strategy: Was a bone handle novel, nonobvious, and useful?

It was useful—no splinters from a bone handle. It was novel—no one had ever done it before. But the patent was denied because it was obvious.

Hair Corp. sells shampoo in the United States and internationally. Its international prices are 30 percent less than its domestic prices. Big Seller, Inc., is in the business of buying products internationally in bulk and reselling them in the United States. Big Seller buys Hair Corp.'s shampoos in Peru and imports them to the United States to be sold at international rates. Can Hair Corp. successfully sue Big Seller for copyright infringement?

The court held that Morris had not infringed McMahon's copyright because a writer may not claim a monopoly on a particular writing style. McMahon v. Prentice-Hall, 533 F.2d 87 (E.D. Mo. 1980).

Question: Tim's will leaves all his money to his cat, Princess Ida. After he dies, his widow and children claim that they are entitled to a share of his estate. Is this true? Will Princess Ida be living like royalty? Strategy: The answer is different for his wife and children.

Tim's wife is entitled to some percentage of his assets (which varies by state). His children have no automatic right to a share of his estate so long as he indicated in his will that they had been left out on purpose.

A tenant renting an apartment under a three-year written lease that does not contain any specific restrictions may be evicted for . a. counterfeiting money in the apartment b. keeping a dog in the apartment c. failing to maintain a liability insurance policy on the apartment d. making structural repairs to the apartment

a

Taylor Swift wanted to trademark her song lyric: "And I'll write your name." She _______. a. can trademark it because it is a short phrase associated with her entertainment services b. can trademark it only if it is in a tangible form c. cannot trademark it because it is generic d. None of these because short phrases cannot be trademarked

a

Blake tells his client that there are five good reasons to set up a trust. Which of the following is not a good reason? a. To pay his grandchildren's college tuition if they go to the same college he attended b. To save money, since setting up a trust is cheaper than a will c. To make sure the money is properly invested d. To avoid probate e. To safeguard his privacy

b

A tenant's personal property will become a fixture and belong to the landlord if its removal would ______. a. increase the value of the personal property b. cause a material change to the personal property c. result in substantial harm to the landlord's property d. change the use of the landlord's property back to its prior use

c

To be enforceable, a long-term residential real estate lease must . a. require the tenant to obtain liability insurance b. define the tenant's duty to mitigate c. be in writing d. specify a due date for rent e. All of these

c

A decedent's will provided that the estate was to be divided among the decedent's issue per capita and not per stirpes. If there are two surviving children and three grandchildren who are children of a predeceased child at the time the will is probated, how will the estate be divided? a. 1/2 to each surviving child b. 1/3 to each surviving child and 1/9 to each c. grandchild d. 1/4 to each surviving child and 1/6 to each grandchild d. 1/5 to each surviving child and grandchild

d

Question: Paul and Shelly Higgins had two wood stoves in their home. Each rested on, but was not attached to, a built-in brick platform. The downstairs wood stove was connected to the chimney flue and was used as part of the main heating system for the house. The upstairs stove, in the master bedroom, was purely decorative. It had no stovepipe connecting it to the chimney. The Higginses sold their house to Jack Everitt, and neither party said anything about the two stoves. Is Everitt entitled to either stove? Both stoves? Strategy: An object is a fixture if a reasonable person would consider the item to be a permanent part of the property, taking into account attachment, adaptation, and other objective manifestations of permanence.

A buyer normally takes all fixtures. The downstairs stove was permanently attached to the house and used as part of the heating system. The owner who installed it intended that it remain, and it was a fixture; Everitt got it. The upstairs stove was not permanently attached and was not a fixture; the sellers could take it with them.

Question: Lily does good deeds for countless people, and many are deeply grateful. On Monday, Wilson tells Lily, "You are a wonderful person, and I have a present for you. I am giving you this baseball, which was the 500th home run hit by one of the greatest players of all time." He hands her the ball, which is worth nearly half a million dollars. Lily's good fortune continues on Tuesday, when another friend, Cassandra, tells Lily, "I only have a few weeks to live. I want you to have this signed first edition of Ulysses. It is priceless, and it is yours." The book is worth about $200,000. On Wednesday, Wilson and Cassandra decide they have been foolhardy, and both demand that Lily return the items. Must she do so? Strategy: Both of these donors are attempting to revoke their gifts. An inter vivos gift cannot be revoked, but a gift causa mortis can be. To answer the question, you must know what kind of gifts these were.

A gift causa mortis is one made in fear of approaching death, and this rule applies to Cassandra. Such a gift is revocable any time before the donor dies, so Cassandra gets her book back. A gift inter vivos is one made without any such fear of death. Most gifts fall in this category, and they are irrevocable. Wilson was not anticipating his demise, so his was a gift inter vivos. Lily keeps the baseball.

Question: Leo rents an apartment from Alok for $900 per month, both parties signing a lease. After six months, Leo complains about defects, including bugs, inadequate heat, and window leaks. He asks Alok to fix the problems, but he responds that the heat is fine and that Leo caused the insects and leaks. Leo begins to send in only $700 for the monthly rent. Alok repeatedly calls and texts Leo, asking for the remaining rent. When Leo refuses to pay, Alok waits until he leaves for the day, then has a moving company place his belongings in storage. Alok changes the locks, making it impossible for Leo to re-enter. Leo sues. What is the likely outcome? Strategy: A landlord is entitled to begin proper eviction proceedings against a tenant who has not paid rent. However, the landlord must follow specified steps, including a termination notice and a court hearing. Review the consequences for actual eviction, described in the "Quiet Enjoyment" section.

Alok has ignored the legal procedures for evicting a tenant. Instead, he engaged in actual eviction, which is quick, and in the short term, effective. However, by breaking the law, Alok has ensured that Leo will win his lawsuit. Leo is entitled to possession of the apartment, as well as damages for rent he may have been forced to pay elsewhere, injury to his possessions, and the cost of retrieving them. Leo may receive punitive damages as well. Bad strategy, Alok.

Question: When Mark applied for life insurance with Farmstead, he indicated on the application that he had not received any traffic tickets in the preceding five years. In fact, he had received several such citations for driving while intoxicated. Two years later, Mark was shot to death. When Farmstead discovered the traffic tickets, it denied coverage to his beneficiary. Was Farmstead in the right? Strategy: A misrepresentation is material if it affects the insurer's decision to issue a policy or set a premium amount.

If Mark had told the truth, Farmstead still would have issued the policy, but the premium would have been higher. It can refuse to pay the claim, even though the issue that he lied about was not a factor in his death.

Question: Many of the videos posted on YouTube are copyrighted material, including thousands of hours of shows owned by Viacom, such as The Daily Show. Viacom sued YouTube for violating its copyrights. Among the evidence Viacom presented was an email from one YouTube founder to another, saying, "... please stop putting stolen videos on the site. We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the cofounders is blatantly stealing content from other sites and trying to get everyone to see it." YouTube presented evidence that it had responded within one day to Viacom's "takedown notice." Is YouTube liable? Strategy: Viacom argued that YouTube was well aware that much of its content was illegal. YouTube responded that it met the requirements of the Safe Harbor provision.

The court found for YouTube. General awareness that many postings infringed copyrights did not impose a duty for YouTube to monitor its videos. Its only requirement was to respond when notified of infringement. YouTube did just that in this case.

Rebecca Reyher wrote (and copyrighted) a children's book titled My Mother Is the Most Beautiful Woman in the World. The story was based on a Russian folktale told to her by her own mother. Years later, the children's television show Sesame Street televised a skit titled "The Most Beautiful Woman in the World." The Sesame Street version took place in a different locale and had fewer frills, but the sequence of events in both stories was identical. Has Sesame Street infringed Reyher's copyright?

The court held that Sesame Street had not infringed Reyher's copyright because Reyher could not copyright the plot of a story, only her expression of the plot. Reyher v. Children's Television Workshop, 533 F.2d 87, 190 U.S.P.Q. (BNA) 387 (2d Cir. 1976).

Question: DatagraphiX manufactured and sold computer graphics equipment that allowed users to transfer large volumes of information directly from computers to microfilm. Customers were required to keep maintenance documentation onsite for the DatagraphiX service personnel. The service manual carried this legend: "No other use, direct or indirect, of this document or of any information derived there from is authorized. No copies of any part of this document shall be made without written approval by DatagraphiX." In addition, on every page of the maintenance manual, the company placed warnings that the information was proprietary and not to be duplicated. Frederick J. Lennen left DatagraphiX to start his own company that serviced DatagraphiX equipment. Can DatagraphiX prevent Lennen from using its manuals? Strategy: With trade secrets, the key is that the owner has made a reasonable effort to protect them.

The court held that these manuals were DatagraphiX's trade secrets.

Question: A producer shot a low-budget horror movie and then delivered ten reels of negative film to Filmprocess Corp. for processing. Filmprocess lost the reels. The producer sued for $5 million, the cost of production. Filmprocess based its defense on an exculpatory clause in the parties' contract, which stated that the producer accepted the full risk of loss for any film delivered to Filmprocess and that the producer would insure against such loss. Who will win the lawsuit? Strategy: The producer delivered its film to Filmprocess. What relationship did that create? A bailment is the rightful possession of goods by one who is not the owner. The parties have created a bailment. Are exculpatory clauses enforced in bailments? If the bailor is a corporation and it has bargaining power roughly equal to the bailee's, a court will probably enforce a bailment exculpatory clause, except in cases of intentional tort or gross negligence.

The producer will lose its claim for $5 million. Both parties were corporations, with roughly equal bargaining power, and the exculpatory clause is valid. There was no intentional tort or gross negligence, so the clause will be enforced.

Question: Research Corp. applied for a patent for a so-called halftoning technique that uses a mathematical formula to enable monitors and printers with limited color options to simulate a wider range of colors. Is this technique patentable? Strategy: Are these inventors attempting to patent a mathematical algorithm or formula?

The trial court ruled that this patent application was invalid because it was too abstract. But the appellate court overruled, holding that, although the patent used mathematical algorithms, the inventors were patenting the process, not the algorithms. It upheld the patent.

Which of the following requirements must be met to create a bailment? I. Delivery of personal property to the intended bailee II. Possession by the intended bailee a. I only b. II only c. Both of these d. None of these

c

Question: If you were in an emergency situation and desperately wanted to prepare a new will, under what circumstances would a holographic will be preferable to the nuncupative option? Strategy: The two types of wills have different requirements for witnesses.

A holographic will does not require witnesses; a nuncupative will requires two.

Question: Doris Rowley rented space from the city of Mobile, Alabama, to run the Back Porch Restaurant. Her lease prohibited assignment or subletting without the landlord's permission. Rowley's business became unprofitable, and she asked the city's real estate officer for permission to assign her lease. She told the officer that she had "someone who would accept if the lease was assigned." Rowley provided no other information about the assignee. The city refused permission. Rowley repeated her requests several times without success, and finally she sued. Rowley alleged that the city had unreasonably withheld permission to assign and had caused her serious financial losses as a result. Comment. Strategy: A landlord may not unreasonably refuse permission to assign a lease. Was the city's refusal unreasonable?

A landlord is allowed to evaluate a prospective assignee, including its financial stability and intended use of the property. Mobile could not do that because Rowley provided no information about the proposed assignee. Mobile wins.

Question: The government accused Carlo Francia and another person of stealing a purse belonging to Frances Bainlardi. A policeman saw Francia sorting through the contents of the purse, which included a photo identification of Bainlardi. Francia kept some items, such as cash, while discarding others. At trial, Francia claimed that he had thought the purse was lost or abandoned. Besides the fact that Francia's accomplice was holding burglary tools, what is the weakness in Francia's defense? Strategy: The finder of property must attempt to locate the true owner unless the property was abandoned. Is there any likelihood that the purse was abandoned? If it was not abandoned, did Francia attempt to locate the owner?

Abandoned property is something that the owner has knowingly discarded because she no longer wants it. The burden is on the finder to prove that the property was abandoned, which will be impossible in this case since no one would throw away cash and credit cards. Because the purse contained photo identification, Francia could easily have located its owner. He made no attempt to do so, and his defense is unpersuasive.

During her second year at the Juilliard School of Music in New York City, Ann Rylands had a chance to borrow for one month a rare Guadagnini violin made in 1768. She returned the violin to the owner in Philadelphia, but then she telephoned her father to ask if he would buy it for her. He borrowed money from his pension fund and paid the owner. Ann traveled to Philadelphia to pick up the violin. She had exclusive possession of the violin for the next 20 years, using it in her professional career. Unfortunately, she became an alcoholic, and during one period when she was in a treatment center, she entrusted the violin to her mother for safekeeping. At about that time, her father died. When Ann was released from the center, she requested return of the violin, but her mother refused. Who owns the violin?

Ann does. Ann's father made a valid inter vivos gift of the violin while Ann was still a student. He intended to transfer ownership to her immediately and made delivery by permitting her to pick up the violin. From that point on, Ann owned it. Rylands v. Rylands, 1993 Conn. Super. LEXIS 823 (Conn. Super. Ct. 1993).

If your grandparents were to die leaving a large estate, and all of their children were also dead, would you have a larger inheritance under a per stirpes or a per capita distribution?

Answers will vary. It depends on the number of siblings you have in relation to the number of children in each of the other branches of the family. For example, if the decedents had two children, under per stirpes distribution, they would each inherit half the estate. If the children were dead, their children (the grandchildren of the decedents) would split the parents' portions. So, if you were an only child, you would get half the estate. If you had three siblings, you would get 1/4 of half, or 1/8 of the estate. In the same example, but under per capita, each grandchild would get 1/5 of the estate. So, per stirpes is better if you have few siblings; per capita is better if your sibling group is larger than the average sibling group in the extended family.

The Louisiana Civil Code limits an innkeeper's liability for stolen property to $500 and only covers cash, jewelry, rare art items, furs, cameras, and negotiable instruments. While staying at the New Orleans Hilton, Allen Chase was drugged by a woman he met at the hotel bar. He woke up the next morning to find that his gold watch, wallet, credit cards, passport, business papers, and camera were gone. As a result of the drug, Chase suffered health problems, which seriously affected his business. Believing that the hotel bartender had helped the woman who drugged him, Chase sued Hilton for negligence in the amount of $575,000. Who wins and why?

Based on Allen Chase v. Hilton Hotels, 682 F. Supp. 316 (1988). The court limited Chase's recovery to $500 per the statute.

Suzy Tomlinson, 74, met a tragic end—she drowned, fully clothed, in her bathtub after a night out partying with 36-year-old J.B. Carlson. He had taken her home at 1:00 a.m. and was the last person to see her alive. The two were not only party buddies; Suzy was on the board of directors of a company J.B. had started. Her family was stunned to find out that she had a $15 million life insurance policy, with the proceeds payable to a company J.B. controlled. He said it was a key person policy. He wanted to protect the company if she died because she had frequently introduced him to potential investors. Is the life insurance policy valid?

Did Carlson have an insurable interest? The court denied the insurance company's motion for summary judgment in its suit seeking a declaration that Carlson did not have an insurable interest. That was in 2010 and there have been no further proceedings, which indicates the case may have settled. There was lots of suspicious evidence, however. Tomlinson's children say that she never took baths. When she applied for insurance, she claimed assets of $47 million. In fact, she had virtually no assets. Carlson had taken out a loan at 17 percent interest to pay the premiums, and the loan was about to come due. Am. Gen. Life Ins. Co. v. Germaine Tomlinson Ins. Trust, 2010 U.S. Dist. LEXIS 103730 (S.D. Ind. Sept. 30, 2010).

Question: Loren Andreo leased retail space in his shopping plaza to Tropical Isle Pet Shop for five years at a monthly rent of $2,100. Tropical Isle vacated the premises 18 months early, turned in the key to Andreo, and acknowledged liability for the unpaid rent. Andreo placed a "For Rent" sign in the store window and spoke to a commercial real estate broker about the space. But, for nine months, he did not enter into a formal listing agreement with the broker or take any other steps to rent the space. With approximately nine months remaining on the unused part of Tropical's lease, Andreo did finally hire a commercial broker. He also sued Tropical for 18 months' rent. Comment. Strategy: When a tenant abandons leased property early, the landlord is obligated to mitigate damages. Did Andreo?

For about nine months, Andreo made no serious effort to lease the store. The court rejected his rent claim for that period, permitting him to recover unpaid money only for the period he made a genuine effort to lease the space.

Question: Geoff takes out renters' insurance with Fastball Insurance Co. On the application where it asks if he has any pets, he fills in "poodle." Although he does not know it, his "poodle" is really a Portuguese water dog. The two breeds look a lot alike and have similar friendly personalities. A month later, his apartment is robbed. Fastball investigates and discovers that Geoff does not have a poodle after all. It denies his claim. Geoff files suit. What result? Strategy: There are two issues here: Was Geoff's answer on the application a material misstatement? Was Fastball's denial in bad faith?

Geoff's misrepresentation was not material—the difference between these two breeds of dog would not have affected liability on the renter's policy. If he had said he had an attack dog such as a Doberman, perhaps the premium would have been lower because the dog would scare off intruders (or higher because the dog would also attack friends and neighbors), but poodles and Portuguese water dogs are equally friendly. Fastball could be liable for refusing to pay this legitimate claim.

Dannie Harvey sued her employer, O. R. Whitaker, for sexual harassment, discrimination, and defamation. Whitaker counterclaimed for libel and slander, requesting $1 million in punitive damages. Both Whitaker and Harvey were insured by Allstate under identical homeowner's policies. This policy explicitly promised to defend Harvey against the exact claim Whitaker had made against her. Harvey's Allstate agent, however, told her that she was not covered. Because the agent kept all copies of Harvey's insurance policies in his office, she took him at his word. She had no choice but to defend against the claim on her own. Whitaker mounted an exceedingly hostile litigation attack, taking 80 depositions. After a year, Allstate agreed to defend Harvey. However, instead of hiring the lawyer who had been representing her, it chose another lawyer who had no expertise in this type of case and was a close friend of Whitaker's attorney. Harvey's new lawyer refused to meet her or to attend any depositions. Harvey and Whitaker finally settled. Whitaker had spent $1 million in legal fees, Harvey $169,000, and Allstate $2,513. Does Harvey have a claim against Allstate?

Harvey sued Allstate for a violation of the covenant of good faith and fair dealing. A jury awarded her $94,000 plus attorney's fees. Harvey v. Allstate Insurance Co., 1993 U.S. app. LEXIS 33865 (10th Cir. 1993).

Question: Maddie set up a trust for her children, with Field as trustee. Field decided to sell a piece of trust real estate to his wife, without obtaining an appraisal, attempting to market the property, or consulting a real estate agent. Maddie was furious and ordered him not to make the sale. Can she stop him? Would she have to go to court? Strategy: The answer depends on the type of trust she has established.

If the trust is revocable, Maddie can simply terminate it and take the property back. If it is irrevocable, she could still prevent the sale by going to court because Field has violated the duties he owes to the beneficiaries. He has violated the duty of loyalty by selling trust property to his wife. He has violated the duty of care by failing to act as a reasonable person would in managing the assets of another.

Sequenom developed a noninvasive prenatal diagnostic test to assess the risk of Down syndrome or other chromosomal abnormalities in fetuses. The test analyzes DNA from the fetus that is found in the mother's blood. Prior to this test, women had to undergo invasive tests that carried a slight risk of miscarriage. The PTO awarded Sequenom a patent on the test, but other diagnostic testing companies sued to invalidate the patent. Is Sequenom's patent valid?

In 2013, a California federal court invalidated Sequenom's patent on the basis that it covered a natural phenomenon—the presence of DNA from the fetus in the mother's blood. This was based on the Myriad precedent discussed in this chapter.

Question: Lonny Joe owned two rare 1955 Ford Thunderbird automobiles, one red and one green, both in mint condition. He stored the cars in his garage. His friend Stephanie wanted to use the red car in a music video, so Lonny Joe rented it to her for two days, for $300 per day. When she returned the red car, Lonny Joe discovered a long scratch along one side. That same day, he noticed a long scratch along the side of the green car. He sued Stephanie for harm to the red car. Lonny Joe sued an electrician for damage to the green car, claiming that the scratch occurred while the electrician was fixing a heater in the garage. Explain the different burdens of proof in the two cases. Strategy: In an ordinary negligence case, the plaintiff must prove all elements by a preponderance of the evidence. However, in a bailment, a presumption of negligence arises. To answer this question, you need to know whether Lonny Joe established a bailment with either or both defendants.

Lonny Joe had no bailment with the electrician because the electrician never assumed control of the car. To win that case, Lonny Joe must prove that the electrician behaved unreasonably and caused the scratch. However, when Lonny Joe rented Stephanie the red car, the parties created a bailment, and the law presumes Stephanie caused the damage unless she can prove otherwise. That is a hard burden, and Stephanie will likely lose.

Angel and Linda Mendez bought a home next door to Rancho Valencia, a fancy hotel on 45 acres of land. The house was about 600 feet from the site where the hotel held outdoor wedding receptions and parties. Even though the Rancho Valencia had installed noise-abating equipment, the Mendezes could still hear music and announcements from its sound system for about 8 hours a month, mostly during the evenings. These noise levels complied with the applicable county noise ordinances. On what theory could the Mendezes sue Rancho Valencia? Will they succeed?

Mendez v. Rancho Valencia Resort Partners, 3 Cal. App. 5th 248 (2016). The couple sued for nuisance. The trial court entered a judgment for the hotel and the couple appealed. The judgment of the lower court was upheld. As the trial court noted, "[t]his is one of those situations, so common in discussions of legal philosophy, where reasonable minds can differ. It is not unreasonable for someone . . . to retire for the evening before 10:00 p.m. It is similarly not unreasonable for people . . . to value their solitude and to prefer the sounds of nature to those associated with human habitation. . . . Others find music and laughter, in moderation and at a reasonable hour, pleasant, or at least not disturbing." **558 Given all of the evidence, the trial court reasonably determined that it "cannot conclude that noise levels from the Resort that otherwise comply with the General Sound Level Limits of the County Noise Ordinance are nonetheless 'disturbing, excessive or offensive' within the meaning of section 36.414."

Eileen Murphy often cared for her elderly neighbor, Thomas Kenney. He paid her $25 per day for her help and once gave her a bank certificate of deposit worth $25,000. She spent the money. Murphy alleged that shortly before his death, Kenney gave her a large block of shares in three corporations. He called his broker, intending to instruct him to transfer the shares to Murphy's name, but the broker was ill and unavailable. So Kenney told Murphy to write her name on the shares and keep them, which she did. Two weeks later, Kenney died. When Murphy presented the shares to Kenney's broker to transfer ownership to her, the broker refused because Kenney had never endorsed the shares as the law requires—that is, signed them over to Murphy. Was Murphy entitled to the $25,000? To the shares? Argument for Murphy: The purpose of the law is to do what a donor intended, and it is obvious that Kenney intended Murphy to have the $25,000 and the shares. Why else would he have given them to her? A greedy estate should not be allowed to interfere with the deceased's intentions. Argument for the Estate: Murphy is not entitled to the $25,000 because we have no way of knowing what Kenney's intentions were when he gave her the money. She is not entitled to the shares of stock because Kenney's failure to endorse them over to her meant he never delivered them, and that is an essential element of a gift.

Murphy gets the $25,000. There was delivery, acceptance, and adequate evidence that Kenney intended the items as gifts. Murphy is not entitled to the shares, though, because without the endorsement there is no delivery, an essential element. Kenney lived for two weeks after instructing Murphy to write her name on the shares, and during that time he should have endorsed them to her or caused a broker to do so. In re Estate of Kenney, 1993 Ohio App. LEXIS 2481 (Ohio Ct. App., 1993).

While in college, David invented a new and useful machine to make macaroni and cheese (he called it the "Mac 'n' Cheeser"). It was like nothing on the market, but David did not apply for a patent. At that time, he offered to sell his invention to several kitchen products companies. His offers were all rejected and he never sold the invention. Years later, he decided to apply for a utility patent. Is David entitled to a utility patent?

No, while the Mac n' Cheeser was new, useful, and nonobvious at the time it was invented, David's disclosure to the kitchen products companies years before renders it not novel now. Inventors have a grace period of one year once disclosure is made to apply for a patent. That time lapsed. Patent rejected.

If you buy a book, you have the legal right to ______. a. read it as many times as you want and then give it away b. scan it to your computer and then email it to a friend c. scan it to your computer and sell the PDF d. All of these

a

Question: Howard Geib, Walker McKinney, and John D. McKinney owned two vacation properties as joint tenants with right of survivorship. The parties were not getting along well, and Geib petitioned the court to partition the properties. The trial court ruled that the fairest way to do this was to sell both properties and divide the proceeds. The two McKinneys appealed, claiming that a partition by sale was improper because it would destroy their right of survivorship. Comment. Strategy: Do joint tenants have a right to partition? Are there any limits on that right?

The McKinneys lost. Any co-tenant (including a joint tenant) has an absolute right to partition. Difficulties in partitioning are irrelevant.

Question: Shannon borrows Isaiah's car, but when she returns the auto, she hands the keys to Scott, who claims he is Isaiah's brother. Scott offers a driver's license and passport to reassure Shannon. Scott is actually a con artist. Isaiah sues Shannon. Outcome? Isaiah will win. Isaiah will win only if a reasonable person would have spotted the fraud. Isaiah will win only if he in fact has no brother named Scott. Isaiah will lose because Scott offered reasonable identification. Strategy: Make sure you know the standard a bailee must meet for redelivering goods.

The bailee is strictly liable to redeliver the goods to the bailor. There are no excuses. The "reasonable person" standard does not apply. The correct answer is (a).

Benita has a food truck where she sells spicy fried gorditas. Benita has been making the gorditas for years, using her family's recipe that has been passed down from generation to generation. Benita wants to protect her family recipe from being revealed to anyone else, so Benita considers the options available to her for the protection of her intellectual property. Because Benita's main concern is protecting the recipe from being revealed to anyone else, Benita's best approach is to treat the family fried gordita recipe as a: a. copyright. b. patent. c. trade secret. d. trademark.

c

Question: Jerry Falwell was a nationally known Baptist minister whose website was falwell.com. One of his most outspoken critics registered the website fallwell.com—note the misspelling—to criticize the minister's views on homosexuality. This site has a disclaimer indicating that it was not affiliated with Reverend Falwell. The minister sued fallwell.com, alleging a violation of trademark law. Was there a violation? Strategy: To win a trademark claim, the reverend had to show a likelihood of consumer confusion between the two sites.

The reverend lost. The court ruled that there was no confusion—fallwell.com had a clear disclaimer. Also, there was no indication of bad faith. The court was reluctant to censor political commentary.

In 1944, W. E. Collins conveyed land to the Church of God of Prophecy. The deed said: "This deed is made with the full understanding that should the property fail to be used for the Church of God, it is to be null and void and property to revert to W. E. Collins or heirs." In the late 1980s, the church wished to move to another property and sought a judicial ruling that it had the right to sell the land. The trial court ruled that the church owned a fee simple absolute and had the right to sell the property. Comment.

The trial court was wrong. The church held a fee simple defeasible. The moment the church ceased to use the property as a church, the land reverted automatically to Collins and his heirs. Collins v. Church of God of Prophecy, 304 Ark. 37, 800 S.W.2d 418, 1990 Ark. LEXIS 566 (1990).

Question: Thomas, age 80, has spent a lifetime accumulating unspoiled land in Oregon. He owns 16,000 acres, which he plans to leave to his five children. He is not so crazy about his grandchildren. Thomas cringes at the problems the grandchildren would cause if some of them inherited an interest in the land and became part-owners along with Thomas's own children. Should Thomas leave his land to his children as tenants in common or joint tenants? Strategy: When a co-tenant dies, her interest in property passes to her heirs. When a joint tenant dies, his interest in the property passes to the surviving joint tenants.

Thomas is better off leaving the land to his children as joint tenants. That way, when one of his children dies, that child's interest in the land will go to Thomas's surviving children, not to his grandchildren. (There are other approaches Thomas could take, such as creation of a trust)

Arvitz purchases a copy of Wordsample 7.0 software, the newest version of the word processing program he normally uses. Arvitz wants to share a copy of the software with his friends Kim and Carrie, but the program was designed to only be copied once. Arvitz is a decent programmer, so after spending a little time with the program, Arvitz learns how to bypass the code that only allows the program to be copied once. Arvitz then makes copies of the program and gives these copies to Kim and Carrie. By copying the word processing program and giving the program to his friends, Arvitz has violated: a. the Software Copyright Act of 2019. b. no law. c. the Digital Millennium Copyright Act. d. the Digital Millennium Patent Act.

c

Question: Jack arrives at Airport Hotel's valet parking area in a Ferrari, just as Kim drives up in her Smart Car. A valet drives Kim's car away, but the supervisor asks Jack to park the Ferrari himself, in the hotel's lot across the street. Jack parks as instructed, locking the Ferrari and keeping the keys. During the night, both vehicles are stolen. The owners sue for the value of their vehicles—about $10,000 for Kim's Smart Car and $350,000 for Jack's Ferrari. Each owner will win if there was a bailment but lose if there was not. Can either or both prove a bailment? Strategy: To create a bailment, the bailee must assume physical control with intent to possess.

When the valet drove Kim's car away, the hotel assumed control with intent to possess. The parties created a bailment, and the hotel is liable. But Jack loses. The hotel never had physical control of the Ferrari. Employees did not park the vehicle, and Jack kept the keys. Jack's was a "park and lock" case, with no bailment.

Victoria's Secret, a well-known lingerie company, found out that a man named Victor Moseley was running a small store in Kentucky named "Victor's Little Secret." Moseley's shop sold clocks, patches, temporary tattoos, stuffed animals, coffee mugs, leather biker wallets, Zippo lighters, diet formula, jigsaw puzzles, jewelry, candles, and adult novelties. Women's lingerie represented about 5 percent of its sales. Does Victoria's Secret have a valid intellectual property claim?

Yes, it won a claim under the Trademark Dilution Act.

Frank Deluca and his son David owned the Sportsman's Pub on Fountain Street in Providence, Rhode Island. The Delucas applied to the city for a license to employ topless dancers in the pub. Did the city have the power to deny the Delucas' request? Argument for the Delucas: Our pub is perfectly legal. Further, no law in Rhode Island prohibits topless dancing. We are morally and legally entitled to present this entertainment. The city should not use some phony moralizing to deny customers what they want. Argument for Providence: This section of Providence is zoned to prohibit topless dancing, just as it is zoned to bar manufacturing. There are other parts of town where the Delucas can open one of their sleazy clubs if they want to, but we are entitled to deny a permit in this area.

Yes, the city could use its zoning powers to deny the license. Earlier zoning ordinances had allowed topless dancing in the section of the city where the pub was located, but the current ordinance prohibited such dancing in that section. The city had no obligation to grant a variance for the Delucas and denied the request. Jonathan Saltzman, "License Is Denied for Topless Dancing at Downtown Pub," Providence Journal-Bulletin, July 11, 1995, p. 2C.

Craig finds a rare 1955 doubled-die penny, worth $1,500, on a city sidewalk outside a coin collectors' convention. The next day, Oliver posts signs that say "Lost 1955 double-die penny. Reward offered. Call Oliver" all over the convention venue. Which of the following is true about Craig's claim to the penny? a. The penny was lost, but Craig can keep it. b. The penny was lost, but Oliver can get it back. c. The penny was lost, but the city has superior rights over Oliver and Craig. d. The penny was mislaid, so Craig can keep it. e. The penny was treasure trove, so Craig can keep it.

a

Dakota's series of romantic novels is very popular in the United States, so much so that her publisher, Antwone, wants to begin publishing the novels in other countries as well. Antwone approaches a publishing house in Australia, and the publishing house is open to discussing a deal. Dakota is concerned that her copyright only protects her in the United States, so Dakota asks Antwone to research that for her. When Antwone researches that issue for Dakota, he will discover that: a. Dakota's novels will be protected if both the United States and Australia are signatories to the Berne Convention. b. Dakota's novels are only protected in the United States. c. Dakota's novels will be protected if Australia has signed the Berne Convention. d. Dakota's novels will be protected if the United States has signed the Berne Convention.

a

Digger lives in Memphis and wants to visit his girlfriend Sarah in Nashville. Digger asks his friend Trevor if he can borrow Trevor's new convertible for the trip so he can impress Sarah. Trevor agrees, and Digger sets off on a road trip to Nashville. Unfortunately, Digger has a few beers first and ends up driving the convertible off the highway into a ditch. The convertible was brand new, and Trevor had not yet purchased insurance on the car. When Trevor asks Digger to pay for the repairs, Digger declines, saying "It's not my car, it's yours! You pay for the damages!" If Trevor sues Digger for the damage to the car, the court will likely: a. require Digger to pay because this was a bailment for the sole benefit of the bailee. b. not require Digger to pay because this was a bailment for the sole benefit of the bailor. c. not require Digger to pay because this was a bailment for the sole benefit of the bailee. d. require Digger to pay because this was a bailment for the sole benefit of the bailor.

a

Gina has season tickets to Cardinals games. One Monday, she promises to give her tickets to Friday's game to Ed, a friend who works across town. On Tuesday, Gina hands the tickets to Al, an administrative assistant. An hour later, when Al still has the tickets and has not given them to Ed, Gina returns. "Sorry," she says, "but my cousins are coming to town this weekend. I'll need those tickets back." Gina is entitled to get the tickets back if Al works for _______________. a. Gina b. Ed c. Both Gina and Ed d. None of these

a

Joe's Garage specializes in repairing foreign cars. Malcolm brings his Alpha Romeo to Joe's Garage for repair. Malcolm explains to Joe, the owner of the garage, that there is a strange sound under the hood and the left front tire is wobbling. Joe is about to leave town to go to Italy for three weeks and tells Malcolm that he cannot accept the repair job and Malcolm should remove the car from Joe's property. Malcolm is worried about driving the car, so he leaves it on Joe's property behind the building. Joe leaves for vacation, not realizing that Malcolm's Alpha Romeo is parked out back. While Joe is in Italy, someone vandalizes the car and causes thousands of dollars of damage. When Malcolm returns for his car and finds out the car has been vandalized, Malcolm sues Joe. Malcolm claims the car was Joe's responsibility because they had a valid bailment. The court will likely find that Joe and Malcolm: a. had no valid bailment, and Joe is not responsible for the damage to the car. b. had a valid bailment, but Joe is not responsible for the damage to the car. c. had no valid bailment, but Joe is responsible for the damage to the car. d. had a valid bailment, and Joe is responsible for the damage to the car.

a

After acquiring three new rental properties, Savannah made improvements to them. In the first property, she installed ceiling fans in each bedroom. In the second, she laid out decorative throw rugs in the living room. In the third, she had a new central air unit installed. Six months later, she decides to sell the properties and is wondering which of these improvements she can remove from the properties and keep for herself. Of the three improvements, Savannah CANNOT remove: a. the central air unit and the throw rugs because they would be considered fixtures. b. the ceiling fans and central air unit because they would be considered fixtures. c. all three improvements because they would be considered fixtures that become part of the real property. d. the ceiling fans and central air unit, but their classification as fixtures would make no difference in whether or not Savannah can remove them.

b

Chloe is taking a botany class at the local university, so she purchases the textbook from the bookstore. Several of Chloe's friends are also taking the botany class. Chloe decides to make some money on her purchase of the textbook. Chloe scans the book into her computer and then sells the digital copies to her friends for 25 percent of the price they would have paid for the textbook. After selling her digital "product" to six friends, Chloe not only has more than recovered the cost of her textbook, she can still sell the book back to the bookstore at the end of the semester. Genius! By scanning and selling the textbook, Chloe has: a. committed copyright infringement if she sells the textbook back to the bookstore at the end of the semester. b. committed copyright infringement because her actions are not permissible under the first sale doctrine. c. not committed copyright infringement whether or not she sells the textbook back to the bookstore at the end of the semester. d. not committed copyright infringement because her actions are permissible under the first sale doctrine.

b

Johann is going to Myrtle Beach for vacation. Johann's friend Victor is going to Myrtle Beach for vacation as well, although Victor will be arriving a couple of days after Johann. Victor plans to sell his grandfather's gold watch while he is in Myrtle Beach. It is a beautiful antique watch worth $3,000. Victor decides that the watch will be safer traveling with Johann than with Victor, because Victor will have two other passengers in his car and Johann is traveling alone. The morning that Johann plans to leave, Victor places the gold watch under the front passenger seat of Johann's car, but does not tell Johann that the watch is there. Johann travels to Myrtle Beach. When he stops at gas stations or rest areas or restaurants, Johann does not lock his car. Two days later, when Victor arrives in Myrtle Beach, he discovers that the watch is no longer in Johann's car, and Johann has no idea what happened to it. Victor wants to sue Johann for the loss of the watch, claiming that they had a bailment and that Johann did not exercise due care. Did Victor and Johann have a valid bailment? a. No, the parties did not have a valid bailment because bailments cannot be created for personal property. b. No, the parties did not have a valid bailment because Johann was unaware that the watch was in the car and therefore did not agree to the bailment. c. Yes, the parties had a valid bailment because Victor transferred title to the watch to Johann by placing it in his car. d. Yes, the parties had a valid bailment because Johann had possession of Victor's personal property but not title to that property.

b

Sabrina owns an apartment complex in upstate New York. One of her renters, Salvo, informs her in January that the heating unit has stopped working in his apartment. Sabrina promises to fix the problem, but two weeks later, the heating unit is still not working. Salvo may: a. move out, but may pay rent at a reduced rate. b. vacate the apartment, and Sabrina will be liable for any expenses he incurs. c. have to fix the problem himself because landlords have no responsibility to repair heating units. d. stop paying rent, but may not move out.

b

Faber-Castell began manufacturing pencils in 1761. Although pencils and erasers had both existed for some time, the company did not begin putting erasers on the ends of its pencils until the 1870s. The company was sued by an inventor who had previously patented this idea. The case went to the Supreme Court. Who won the case? a. The patent holder because no one had ever put an eraser on a pencil before b. The patent holder because the PTO had approved his patent c. Faber-Castell because the pencil with an eraser was not novel d. Faber-Castell because the pencil with an eraser was not useful

c

Monica has created her own cleaning solution. Monica's friends encourage her to sell the cleaning solution; they think it is so fantastic that they believe Monica will make a lot of money on it. They encourage Monica to apply for a patent on the cleaning solution formula so that no one can copy it, and so Monica will be the only one who can sell it. Monica likes the idea of making a lot of money by selling her cleaning solution, but she does not want to give up her secret ingredient. If Monica applies for and receives a patent on the cleaning solution: a. she can keep the formula a secret forever. b. she must reveal the formula, and others can copy the formula, although they must pay a fee to the U.S. Patent Office to do so. c. she must reveal the formula, but has the sole right to produce and sell it for twenty years. d. she can keep the formula a secret for twenty years.

c

One of Jenna's favorite things to do is relax by the lake on her neighbor Brad's property. One day, Jenna is sitting by Brad's lake reading a book when she discovers a diamond ring near the water's edge. Jenna shows the ring to Brad, but Brad doesn't know who the owner is. Jenna and Brad post notices around the small town they live in, hoping someone will come forward to claim the ring. After a reasonable amount of time, if the real owner does not claim the ring: a. Jenna owns the ring because she saw it first. b. neither Brad nor Jenna own the ring; they must turn it in to the local government. c. Brad owns the ring. d. Brad and Jenna become co-owners of the ring.

c

Quinn and Anna have been friends for many years. They have discussed many times that when Quinn dies, Anna will inherit Quinn's prized antique, a beautiful hand-carved writing desk. One day, to make sure that Quinn's wishes are actually carried out when he dies, he tells Anna again that she will inherit the antique desk, this time in the presence of his three adult children. Quinn states that he wants to enjoy the desk while he is still living, so it will remain in his house until his death. Quinn's will states that the antique desk will go to his sister Analise. When Quinn dies, the antique desk: a. goes to Anna. b. goes to his three adult children. c. goes to his sister Analise. d. escheats to the state.

c

VitaminWater has become such a success that other companies are also now selling similar (but not identical) flavored colored water. Some competitors bottle their drinks in a similar bell-shaped bottle with a two-toned label that has a horizontal color band. What is the best infringement claim for VitaminWater to make against these competitors? a. Patent b. Copyright c. Trademark d. Trade secret e. There is no good claim.

c

Consider the following: I. A house (value: $250,000) II. The giant high-definition smart television in the house (value: $2,999) III. The land that the house sits on (value: $30,000) IV. An old car in the house's garage (value: $5,001) How many of these items are personal property? a. All four of them b. Three of them c. Two of them d. One of them e. None of them

c (II and IV)

A new north-south interstate highway was being planned, and the route for the interstate went straight through Roy's property. Roy received a notice from the city stating that his property would be condemned and setting a hearing on the matter. Roy appeared at the hearing to contest the action, saying he had lived in this house for forty years, and strenuously objected to the city taking his property! The probable result is that: a. the city may take the property under the principle of adverse possession since it is for a public use, as long as it pays Roy just compensation. b. the city may take the property under the principle of eminent domain since it is for a public use and does not have to compensate Roy. c. the city may take the property under the principle of adverse possession since it is for a public use and does not have to compensate Roy. d. the city may take the property under the principle of eminent domain since it is for a public use, as long as it pays Roy just compensation.

d

Alejandro is the owner of Mex-To-Go, a popular food truck from which he serves his favorite Mexican foods. During the spring, he likes to park his food truck near the city's little league baseball field because of the heavy evening traffic. He leases a small plot of land next to these fields for the months of March, April, and May. Alejandro's lease is a: a. tenancy at sufferance. b. tenancy at will. c. periodic tenancy. d. tenancy for years.

d

Holding out an envelope, Angel says, "Ben, I'm giving you these opera tickets." Without taking the envelope, Ben replies, "Why would I want opera tickets? Loser." Angel leaves, crestfallen. Later that day, a girl whom Ben has liked for some time says, "I sure wish I were going to the opera tonight." Ben scrambles, calls Angel, and says, "Angel, old buddy, I accept your gift of the opera tickets. I'm on my way over to pick them up." Does Ben have a legal right to the tickets? a. Yes because Angel intended to transfer ownership. b. Yes because offers to give gifts cannot be revoked. c. No because no consideration was given. d. No because Ben did not accept the gift when offered.

d

If Chip buys an insurance policy covering his daughter Sarah's apartment, which of the following statements is true? a. Sarah is the insured, the beneficiary, and the owner b. Chip is the insured, the beneficiary, and the owner c. Sarah is the beneficiary; Chip is the insured and the owner d. Sarah is the insured and the beneficiary; Chip is the owner

d

In Suzanne's will, she left her home and five acres to her niece, Abrhianna. However, before her death, Suzanne sold the property to Clark, providing a deed in fee simple. At the moment of Suzanne's death, who owns the property? a. Clark and Abrhianna become co-owners of the property. b. neither Clark nor Abrhianna own the property. c. Abrhianna owns the property. d. Clark owns the property.

d

Quick, Onyx, and Nash were deeded a piece of land as tenants in common. The deed provided that Quick owned one-half the property and Onyx and Nash owned one-quarter each. If Nash dies, the property will be owned as follows: a. Quick 1/2, Onyx 1/2 b. Quick 5/8, Onyx 3/8 c. Quick 1/3, Onyx 1/3, Nash's heirs 1/3 d. Quick 1/2, Onyx 1/4, Nash's heirs 1/4

d

Thomas's English Muffins wanted to protect the method by which it makes muffins with air pockets—what it calls "nooks and crannies." What would be the best way to achieve this goal? a. Patent b. Copyright c. Trademark d. Trade secret e. This method cannot be protected

d

Which of the following forms of tenancy will be created if a tenant stays in possession of leased premises without the landlord's consent, after the tenant's one-year written lease expires? a. Tenancy at will b. Tenancy for years c. Periodic tendency d. Tenancy at sufferance

d

A couple thought of a clever name for an automobile. They wanted to protect this name so that they could ultimately sell it to a car manufacturer. What would be the best method to attain this goal? a. Patent b. Copyright c. Trademark d. Trade secret e. This name cannot be protected.

e

Hallie is telling her cousin Anne about the will she has just executed. "Because of my broken arm, I couldn't sign my name, so I just told Bertrand, the lawyer, to sign it for me. Bertrand was also the witness to the will." Anne said, "You made a big mistake: I. You should have made at least some sort of mark on the paper. II. The lawyer is not permitted to witness the will. III. You did not have enough witnesses. Which of Anne's statements is true? a. I, II, and III b. Neither I, II, nor III c. Just I d. Just II e. Just III

e