Chapter 16 Property and Its Acquisition

Tangible personal property

(sometimes called personalty) is something that has physical form.

Real or personal

2 ways property are defined

Tenancy in Common

A divorce or separation usually transforms a tenancy by the entirety into a —-

Tenants in Common

A joint tenant's interest may be transferred while the joint tenant is alive. However, the transfer would end the joint tenancy. The previous owners and the new co-owner would hold the property as tenants in common

Statutory damages

Also,—-, which usually are much higher than those otherwise obtainable, as well as attorney's fees, are only available after registration. However, if registration occurs after the lawsuit for infringement is filed, —- and costs generally are not then recoverable.

Constructive Delivery

An act equivalent to the actual, physical delivery of property that cannot be physically delivered because of difficulty or impossibility. For example, the transfer of a key to a safe constructively delivers the contents of the safe.

causa mortis

Another type of conditional gift is made when a donor expects to die soon.

acquired and transferred, or bought and sold, by contract.

Any kind of property may be

Trademark

Business fifirms may acquire property rights known as —-. A —- is a word, mark, symbol, or device by which the products of a particular manufacturer or the commodities of a particular merchant are distinguished as to their origin, are guaranteed for quality, or are marketed. The trademark must be distinctive in its line of commerce.

songs, books, computer programs, and architectural plans

Copyrighted works can include

Infringement

Damages may be collected for —-, which is the unauthorized copying, sale, display, or performance of a copyright protected work

(1) the purpose and character of the use—whether it is for nonprofit or educational purposes; (2) the nature of the copyrighted work; (3) the amount and substance of portion used compared to the whole; (4) the effect of the potential market or value of copyrighted work.

Fair use factors

70

For works created on or after January 1 of 1978, copyrights owned by the creator of the work last for the life of the creator plus —- years.

joint tenancy, tenancy in common, tenancy by the entireties, or community property

Forms of co-ownership

causa mortis

If the donor of a gift —- recovers or dies of another cause or simply revokes the gift before death, the gift is not legally valid and may be recovered by the decedent's estate.

accession, intellectual labor, finding, or occupancy

In addition, personal property legitimately may be acquired by

Community Property

In some states, all property acquired by husband and wife during their marriage is presumed to be —-. With —-, each spouse owns a one-half interest in such property.

Real property

In the form of land extends down to the center of the earth and, with certain limits, includes the airspace above the land. also includes buildings and anything that becomes permanently attached to buildings and land. The rights to possess, use, profit from, and destroy such things also are considered —-.

Trade secret

Is commercially valuable information that the owner attempts to keep secret.

20

Like copyrights, patents can be transferred to others. A patent is good for up to —- years and is not renewable.

Purchasing

People acquire most of their property by —- it.

title, possession, use, enjoyment, profit, and alienation

Property rights

Contract, gift or inheritance

Real or personal property is acquired most commonly by ...

adverse possession, dedication, and eminent domain.

Real property also may be acquired by

Tenancy by the entireties

Some states also recognize a form of co-ownership between a hus- band and wife called —-. A tenancy by the entireties can only be entered into by married couples, carries the right of sur- vivorship, and one tenant cannot sell or mortgage the subject property without the spouse's consent.

Trade secrets

Sometimes a business firm will have important ideas or knowledge that should not be revealed as required for patents and copy- rights, or such ideas cannot meet the criteria for patent or copyright protection. These ideas can still be protected as —-

True

T or F After a copyright period expires, the work can be used by anyone without cost or obtaining permission. An author can transfer ownership of the copyright to others.

True

T or F All forms of co-ownership have two attri- butes in common. The first is that all co-owners have equal rights of possession. Equal rights of possession means that no co-owner can exclude any other co-owner from any physical portion of the property. This is the most basic attribute of co-ownership.The second attribute common to co- ownership is the right of partition

True

T or F All states and the federal government have trademark registration laws. Registration is not essential; only its original appropriation and con- sistent use is required.

True

T or F Anyone who loses property has the right to recover it from any finder. However, one must prove true ownership. When a finder of property knows who the owner is, the finder must return the property or be guilty of theft. Under some laws, a finder must try (for example, by newspaper advertising) to locate the property owner. If the owner is unknown, either the finder or the owner of the place the property was found may keep the property until the true owner appears. Which one has this right depends on whether the property is lost or mislaid.

True

T or F Because the interest in a joint tenancy passes automatically on death, joint tenants often use this form of co-ownership to leave property to the other joint tenant(s). In this way, they do not have to incur the costs and delays of probate.

True

T or F Copyright protection automatically attaches upon creation of the original work in a fixed medium, for example, writing a poem on paper. There is no need to register the work with the U.S. Copyright office to have a valid copyright in your work. It also is best, but not required, for new works to attach a notice of copyright, especially if it is published, to prohibit the defense of innocent infringement

True

T or F Finders of lost property and owners of the place where mislaid property is found both acquire possession and use of the property until the true owner is found.

True

T or F Ideas alone are not patentable.

True

T or F If the right of survivorship conflicts with provisions of a will, the property passes via the right of survivorship, not via the will

True

T or F If, by mistake, someone improves another's property, courts seek to do justice by letting the improver keep the property after paying fair value for the original item.

True

T or F It is beneficial to register for copyright protection at the outset, because a suit may only be brought for copyright infringement if the work is registered

True

T or F It is the fixed expression, not the idea, that is protected.

True

T or F Like discarded or abandoned property, wildlife is considered to belong to no one.

True

T or F Often the law allows a symbol of the subject matter of the gift to be substituted in delivery.

True

T or F Ownership rights are not absolute. An owner of property is not permitted to use that property in an unreasonable or unlawful manner that injures another. The government may adopt laws to protect the public health, safety, morals, and general welfare. Such laws may limit the ownership rights and freedom of use

True

T or F Sometimes the partition is physical, as when a co-owned farm is divided into two parcels. Usually partition is financial.

True

T or F The rules for filing are complex and proposed legislation may change these rules. However, it is generally best to dis- close little to nothing about the invention to anyone before filing for a patent and to file for patent protection as soon as possible but before one year expires after the invention is publicly used, actually or attempted to be sold, or pat- ented by someone else.

True

T or F Under the federal copyright law not all unauthorized uses of copyrighted works are infringements.

True

T or F Whether a work is published or not, the fair use analysis applies.

True

T or F You can acquire personal property rights by original production of intellectual property. creators may take legal steps to acquire exclusive property rights in such property in the form of patents, copyrights, and the like.

True

T or F a mere promise to make a gift creates no legal obligations

True

T or F if a trademark is registered, the registration provides constructive notice of ownership and a strong presumption of validity.

Fixed, original

The expression to be copyrighted must be —- and —-.

the economic impact of the use.

The most important factor in determining whether the defense of fair use is available is

1. the company permits competitors to refer to similar products by the unique trademark 2. the trademark is used as a generic descriptive term of a class of products or services from more than one source

The originating company loses its exclusive property right to the trademark if either of the following occurs:

Alienation

To dispose of it by sale, gift, consumption, or destruction

Patent and Trademark Office

Unlike copyrights and trademarks, a patent must be registered with the federal —- to prove validity and to protect against infringement.

Conditional Gift

a gift that can be accepted or demanded only after a certain condition has been met

intent, delivery, acceptance (donor must demonstrate 2 of them)

a legally valid and binding gift is composed of three elements:

Right of partition

allows any co-owner to legally compel the division of the property among the co-owners

Patents

are given for original designs, such as a unique chair, or original processes, such as one for refining oil into rubber. —- also are given for certain new and distinct varieties of plants and other biological creations.

inter vivos

between living persons

Intangible personal property

comprises anything that does not have a physical form. Examples include the goodwill associated with a business and rights in intellectual property

Severalty

exists when one person owns all of the personal or real property involved. Most common form of personal property

Co-ownership

exists when two or more persons have ownership rights in the same property.

Fair use

is a doctrine that lessens the consequences of infringement.

Delivery

is a shift of physical possession of the property to the new owner, the donee.

Service mark

is a unique word, mark, or symbol that identifies a service as opposed to a product. are governed by the same law as trademarks

lost property

is created when the owner does not know when or where it disappeared from the owner's possession.

Personal property

is defined as rights and interests in anything that is not real property. —- can be either tangible or intangible.

Real property

is defined as rights and interests in land, buildings, and those things permanently affixed to them (fixtures). (sometimes called realty) includes not only the surface of the earth, but also the water and minerals on and below the surface

Property

is defined as the rights and interests in tan- gible and intangible things.

Intellectual property

is intangible property created by the intellect and includes copyrights, service marks and trademarks, patents, and trade secrets. The creation, use, and transfer of interests in —- generally are governed by federal statutes

Mislaid Property

is placed intentionally somewhere but then forgotten.

Joint Tenancy

is the co- ownership of the same property with the right of survivorship.

Patent

is the grant of the exclusive right to make, use, import, sell, and offer a novel or new, non-obvious, useful product or process.

accession

is the right of an owner of property to all that property produces, naturally or artificially, or to a significant increase in that property. Thus, farm crops and the offspring of animals belong to the owner of the land or the animals

occupancy

means acquiring title by taking possession of personal property that belongs to no one else

Fixed

means it is expressed in a perma- nent way others can understand, for example in writing, painting, computer language, or a blueprint.

Novel

means no one has ever thought of the product or process before.

Right of Survivorship

means that if one of the joint owners dies, the remaining owner or owners still retain their ownership right to the whole property.

Non-obvious

means that it was above the basic engineering standards in the field at the time.

Useful

means the product or process can help people do things.

Copyright

protects the expression of a creative work, such as the work of an author, artist, or composer. Owners of the —- have the exclusive right to reproduce, sell, perform, or display the work.

Tenancy in Common

the number of shares owned may be equal or unequal, and there is no right of survivorship. Upon the death of any tenant in common, that person's interest passes to the heirs (relatives entitled to inherit) or to the beneficiaries designated in the will, if there is one. The heirs or beneficiaries then become tenants in common with the other owners. Any number of co-owners may be tenants in common of a particular piece of property. Tenants in common also may transfer their interest at any time without the other own- ers' consent.

Severalty or co-ownership

two basic ways to own property