Fundamentals First Possession
ACQUISITION BY CREATION COPYCATS
WHERE UPHOLDING SOLE PROPRIETARY RIGHTS OF CREATOR SERVES A BENEFICIAL SOCIAL FUNCTION, COPYING IS NOT OKAY. OTHERWISE, WHEN NO LEGAL RESTRICTION PROHIBITS COPYING, CREATOR RETAINS NO PROPRIETARY RIGHTS BEYOND THE CHATTEL OF HIS INVENTION, MAKING COPYING OKAY .
COPYING IS BAD. In market economy, granting individuals exclusive rights to a property can be an effective way to allocate scarce resources. Creator should gain exclusive property rights to creation when copying would destroy his industry. ♦ International News Service v. Associated Press 1918: INS was stealing AP publications
and republishing them as their own in Western cities. Rule: There is no property interest in the news between both publishing companies and the public; but because they were competitors, a quasi-property right did exist in AP against INS. For AP.
♦ Virtual Works v. Volkswagen of America 2001: Plaintiff registered domain name vw.net
with knowledge that it might be confused with that of Volkswagen. Plaintiff eventually offered to sell the sight to VW and threatened to auction it off to highest bidder. Rule: Though Virtual Works was first in time, statutory regulations against such bad faith capture dictated possession to VW. POLICY: To prevent expropriation of protected marks and to abate consumer confusion. for the purpose of guarding against appropriation by one person of another’s self. Proprietary interest is inheritable upon death.
♦ “Right of Publicity”—Property interest in name, likeness, or other aspects of identity
COPYING IS GOOD. When resources are not scarce and without some legislative provision, a creator’s property is limited to the chattel which embodies his invention, not extended to the idea behind the invention. Copying promotes some social benefit. ♦ Cheney Bros. v. Doris Silk Corp. 1929: Defendant copied one of Plaintiff’s popular silk
designs and sold them at a lower price. Designs were not able to be copyrighted because they lasted only in seasons. Rule: Because there was no legal provision for protection of designs, there was no enforceable protection. For Defendant.
♦ Smith v. Chanel 1968: Plaintiff made copy of Chanel No.5 and marketed it as a cheaper
alternative with the Chanel trademark. Rule: A large expenditure of money does not in itself create legally protectable rights. POLICY: Copier serves an important public interest by offering comparable goods at lower prices.
Fundamentals First Possession
CREATION FROM OTHERS’ ABANDONED PROPERTY: Moore v. Regents of University of CA 1990: Plaintiff sues for conversion of a cell line taken from
his leukemia-ridden spleen and bodily fluids which were used by the hospital to develop a patented distinct cell line of the disease that was worth millions. H: no recovery for conversion. RULE: No property interest is maintained in abandoned cells. POLICY: Extending reach of proprietary rights of patient over his excised cells and tissue would place crippling liability on bio-med companies, hindering publicly beneficial research. DISSENT: Plaintiff should have retained at least partial proprietary rights to at least do with his own cells what the defendants did.