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Class Notecards Flashcards

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1
Q

3 types of land

A
  1. real
  2. personal
  3. intellectual
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2
Q

Property

A

-ownership relationship humans have with property

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3
Q

7 ways to acquire property

A
  1. Creation (originator-it is yours)
  2. Capture (has no owner, you seize it)
  3. Finding
  4. Purchase
  5. Gift (transfers ownership)
  6. Confusion (only happens when property is fungible - interchangeable- must be the same, ex. money in different bills)
  7. Accession
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4
Q

Lost Property

A

-the person who lost it is unaware or does not know where they lost it; belongs to finder as long as it is found public

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5
Q

Mislaid Property

A

-belongs to the person whose land property is found. If they put it there and forgot about it

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6
Q

Abandoned Property

A
  • can belong to the public if found in the public
  • belongs to property owner if found on private property
  • giving up ownership
  • (ex. a couch in the grassy median)
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7
Q

3 elements of a valid gift

A
  1. Intent
  2. Acceptance
  3. Delivery (actual or symbolic)
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8
Q

Inter vivos gift

A
  • a gift made while someone is alive
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9
Q

Elements to a Donatio Causa Mortis Gift

A
  1. Made in anticipation of Impending Death
  2. Actual Death from the source of peril contemplated
  3. Donative Intent
  4. Acceptance
  5. Delivery
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10
Q

Elements to a valid accession claim

A
  1. Labor
  2. Increase in Value
  3. In Good Faith
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11
Q

New Way (Accession Claim)

A

-if property is taken in good faith and worked on to increase value, it becomes the new properties owner

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12
Q

Old Way (Accession Claim)

A

-physical, visible transformation becomes the property of the new owner

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13
Q

Elements of a bailment

A
  1. transfer of possession

2. Intent to be returned

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14
Q

3 kinds of bailment

A
  1. Benefit of Bailor
  2. Benefit of Bailee
  3. Beneficial to Both
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15
Q

Benefit to Bailor

A
  • can I leave my car with you

- very low responsibility

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16
Q

Benefit to Bailee

A
  • borrowing speedboat

- very high responsibility

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17
Q

Beneficial to both

A

-valet parking

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18
Q

Common Carriers

A
  • cannot decide when to accept or not accept a bailment
  • fedex, ups, usps, delta, united
  • businesses that hold themselves out as bailees for hire (warehouses)
  • they can post (and apply to everyone) things they will not bail in advance
  • if they take the property, they have strict liability (absolute responsibility)
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19
Q

Fixture

A
  • item of personal property permanently affixed to real property
  • can be removed if it can be done so without showing that it ever existed
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20
Q

Fasces

A
  • symbol of ancient Rome

- lictor carries it

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21
Q

Fascism

A

-originated from Fasces. Benito Mussolini aaas obsessed with returning “glory” to Rome/Italy

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22
Q

Fee Simple Absolute

A
  • you are the only person who could claim an ownership interest in your land
  • from “a (grantor)” to “b (grantee)”
  • whatever A had, B now has
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23
Q

Life Estate

A
  • from “a” to “b” for the life of “c”
  • B’s interest is ended on C’s death & B’s interest
  • called a “life estate” for another life (pour autre vie)
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24
Q

Come BACK to A to B STUFF

A

Come BACK to A to B STUFF

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25
Q

2 categories of interest in land

A
  • possessory

- non-possessory

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26
Q

Possessory Interest

A
  • estates classified according to the quantity, nature, and extent of the rights they involve into 2 major categories:
  • -Freehold
  • -Less than freehold
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27
Q

Non-possessory Interest

A

-easements, profits a prendre; priviledged or license to go on property for certain purposes

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28
Q

Ownership (individual or multiple)

A

-may be held individually or concurrently by two or more person, each of who m is entitled to an undivided interest in the entire property

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29
Q

Freehold Estate

A
  • a right of ownership of real property for an indefinite time (fee estate) or for the life of a person (life estate)
  • Best type of property estate is one that gives you immediate possession and ownership for life
  • Estate without immediate right to possession is known as a future interest
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30
Q

Fee Estates

A
  • include the right to immediate possession for an indefinite time and the right to transfer the interest by deed or will
  • include both simple and qualified fee estates
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31
Q

Fee Simple Estate

A
  • the property is owned absolutely and can be sold or passed on at will; this provides the greatest possible ownership interest
  • basic characteristics:
  • –transfer of ownership
  • –transferring ownership through inheritance
  • most extensive and comprehensive estate, all others are defied from it
  • conveyance must be intended to convey full and absolute title in the absence of clear intent to the contrary
  • grantor must have fee simple interest to transfer
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32
Q

2 types of concurrent ownership

A
  • Tenancy in Common

- Joint Tenancy

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33
Q

Tenancy In Common

A
  • can be multiple parties
  • default way that parties relate
  • profit/proceeds are directly attributable to percent of ownership (70% to Jeff, 30% to Erika)
  • both entitled to 100% use
  • legal benefits and other things are defined by percentage of ownership
  • If Erika dies, she can do with her land what she wants, she can sell, bequeath, or give it away (ANYTHING)
  • ——-Taxable Event
  • Jeff has no ownership in her 30%
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34
Q

Joint Tenancy

A
  • No corporate entities because they are forever; only humans
  • Neither can do anything to this property without the others permission
  • Default way married persons relate to property
  • Fundamental distinction between married and not married
  • If joint tenant dies, the other tenant retains 100% ownership (not a taxable event because nothing changed)
  • Only 2 people
  • Can have this outside of marriage but must have a separate contract
  • All rights of marriage can happen “a la carte” without being married
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35
Q

Statute of Frauds

A

-written document (deed to protect against fraud)

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36
Q

Deed must be:

A
  • descriptive
  • written
  • witnessed
  • signed
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37
Q

3 kinds of deeds (defined by the warranties they provide):

A
  • General Warranty Deed
  • Special Warranty Deed
  • Quitclaim Deed
38
Q

General Warranty Deed

A
  • Best deed you can get
  • Contains all warranties possible (20)
  • -> you are the owner
  • -> no secret problems
  • person guaranteeing property is priming to defend your ownership of the property
39
Q

Special Warranty Deed

A
  • Anything less than a general warranty
  • Very common
  • Pay less, get less warranty
40
Q

Quitclaim Deed

A
  • Worst kind
  • “Whatever I have, I now give to you”
  • Grants whatever I had (Sold you 10% not 100% and you can’t sue regardless of what is represented to you)
41
Q

Recordation

Ex. Jeff sells property to Katie in the morning and Caleb in the afternoon

A
  1. Race - whoever gets to the recorders office first
  2. Notice - if Caleb has actual notice or if Katie’s has actually recorded, then he is the owner
  3. Race/Notice - whichever one gets their first as long as Caleb does not now about Katie
42
Q

Easements

A
  • possessor interest in someone else’s property

- utility easement

43
Q

Positive Easement

A
  • government

- utility

44
Q

Negative Easement

A

-cannot build higher to protect neighbors view

45
Q

2 kinds of Easements

A
  • Easement Appurtenant

- Easement in Gross

46
Q

Easement Appurtenant

A

-runs with the land, condition of the title

47
Q

Easement in Gross

A
  • owned by a person or company as long as they need it they have it
  • when they are not around anymore it ceases to exist
48
Q

Adverse Possession

A
  • accession argument for realty
  • if someone occupies your land for a particular amount of time in a particular way they become the owners
  • in Utah, the period is 7 years
49
Q

For actual adverse possession to occur there must be:

A
  • actual possession
  • adverse
  • open and notorious
  • continuous
  • for the prescribed period (clock begins when the rightful owner does know or should have known about the squatter)
50
Q

Tenancy for Years

A

-any specified amount of time

51
Q

Period Tenancy

A

-month to month; get one whole period NOT the equivalent

52
Q

Tenancy at will

A
  • when someone is staying at your house
  • no regular/recurring payments (does not have to pay)
  • to end, you must give them a reasonable amount of time depending on the circumstances (reasonable person is 2 weeks)
53
Q

Tenancy at sufferance

A
  • someone keeps staying in the apartment after they are supposed to have left
  • still a tenant
  • they can be evicted but they owe you money
54
Q

Landlords can NEVER resort to self-help

A
  • changing locks; throwing stuff in the street

- power company can turn off power; landlord cannot

55
Q

Eviction is a lawsuit:

A
  • file a pay or quit notice
  • if they fix the problem then you cannot evict them anymore
  • sheriff’s office is the only one who can physically remove the tenant and their stuff
56
Q

The only way to end tenancy:

A
  • eviction

- mutual agreement

57
Q

Tenant Duties

A
  • pay rent
  • not commit waste
  • not commit ameliorative waste
  • abide by lease
  • not sublet
58
Q

Landlord duties

A
  • must be habitable
  • hot/cold water
  • non-leaking ceiling
  • not infested
  • warranty of quiet enjoyment
59
Q

Landlord/Tenant Duties

A

-breach of any duty can lead to a lawsuit by either party

60
Q

How do you lose a copyright?

A

-passage of time and giving it up

61
Q

Statute of Ann 1709

A
  • encouraged men to write works, so it offered them protection of these works
  • 14 years for new things, 21 years for things that are already out there
  • first example of copyright
  • sets time periods for copyright and ownership of book by the author
  • Commerce Clause in Constitution provides for Congress to create copyright law
62
Q

Article 1 Section 8 US Constitution

A

-“To promote the progress of Science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”

63
Q

What is copyrightable?

A

-original works of authorship, consisting of copyrightable subject matter, fixed in a tangible medium of expression

64
Q

Work of Authorship

A

-creating, NOT just compiling

65
Q

Fixed in a Tangible Medium

A

-must be set in a permanent way

66
Q

Copyrightable

A

-Instagram, FB comments, anything you make/create. (must be set down in some immutable piece - paper, audio, video)

67
Q

What is the purpose of copyright?

A
  1. Produce
  2. Copy
  3. Distribute
  4. Have attribution for
  5. Display
  6. Perform (with one exception)
  7. Prepare derivatives.
68
Q

Limits on the rights bestowed to copyright holders:

A
  1. The fist sale doctrine - they have the right to control the sale of their work. But only their first sale. Not meant to capture copying. Copyright law says it is illegal to make copies of your music.
  2. The compulsory license for performance - explains why you can perform cover versions of songs. Or why you can play a song you didn’t right. It means that if you are a copyright holder that something is performable, you do not have to get permission from the copyright holder to perform their work. However, you do have to pay for it. You need permission if you want to change the performance however. Has to be a business environment though. If you are just playing at your house or something, you can do what you’d like.
  3. Photographs of building facades and public displays.
  4. Certain remedies are unavailable to non registrants
  5. The Fair Use exception to copyright
69
Q

Architecture Copyright

A

-can be copied but after a certain amount of time it becomes public domain

70
Q

Copyright compromise

A

-if you don’t protect your inventions and ideas at all then nobody is going to make new ideas and new books but if you copyright it forever then people won’t be encouraged to create new art because they are making money forever on one thing that they have invented or created

71
Q

What is copyrightable?

A

It has to be:

  1. Original
  2. Authorship
  3. Copyrightable Subject Matter
  4. Fixed
  5. Tangible Medium
72
Q

Works for hire

A
  • work made by an employee as part of her regular duties
  • work specifically commissioned as part of a collaborative work (motion picture, translation, atlas)
  • work of joint authorship (must have mutual intent to be joint authors)
73
Q

Copyrightable subject matter

A
  • Literary works
  • Musical Works
  • Dramatic works
  • Pantomimes and Choreographically works
  • Pictorial, graphic, and sculptural works
  • motion pictures and other audiovisual works
  • sound recordings
  • architectural works
  • software codes
74
Q

Original

A

that it has an origin, that it comes from somewhere. Not that it has never been see, has a definite source

75
Q

Authorship

A
  • What does it mean to be an author of something? Wholly created by you, you control every aspect of it.
  • –works for hire
76
Q

Fixed

A

-the work must be set down in some immutable way (i.e.. if a song, NOT simply whistled, but written down or recorded, or, if a poem, NOT written in the sand on the shoreline but on paper

77
Q

Tangible Medium

A

-the work must be recorded in some medium that is Identifiable, Understood, and that has some physicality (Remember: Ideas are not copyrightable; must be permanent)

78
Q

Non-copyrightable subject matter

A
  • facts are never copyrightable (only the expression of them or their organization)
  • Compilations are not copyrightable (only to the extent of their originality of presentation or arrangement of material or their original elements)
  • derivative works are only copyrightable to the extent of their originality
  • government works are not copyrightable
  • facts, ideas, processes, systems, methods, principles, discoveries, inventions, words, sounds, colors
79
Q

The Separability Issues

A

(only applies to pictorial, graphic, and sculptural works)
1. If it is possible to separate the artistic element of the work from its Functional elements
2. If yes, then only the artistic elements are copyrightable
3. If not, then the object is not copyrightable at all; it is a “Useful Article”
If you can imagine it separate from it’s medium it can be copyrightable

80
Q

How does one acquire a copyright?

A
  • copyrights AUTOMATICALLY accrue to the author of the eligible work upon production, NOTHING is required of the author to claim or acquire her copyright
  • Statutory remedies for infringement, however, require filing the work with the U.S. Patent and Trademark Office
  • copyrights may be sold or waived by contract, like any property right
81
Q

How does on lose a copyright?

A
  • only by the passage of time or intentional alienation
  • copyright currently extends, for individuals, for the life of the author plus 70 years
  • for works for hire (those held by corporations) the term is the soonest of either 120 years front he date of creation or 95 years from the day of first publication
  • this has been extended and extended, mostly at the behest of large corporations (notably disney)
82
Q

Expiration of Copyright

A
  • when a copyright expires, the work becomes a part of the PUBLIC DOMAIN
  • this means, literally that it now belongs to the people and that it may be used in any manner that anyone wishes; it becomes part of the fabric of our culture to be reinterpreted freely
83
Q

Perpetual Copyright

A

-the terms of a copyright have been extended and extended by Congress, mostly at the behest of large corporations (and notably Disney). It has been suggested by some legislators

84
Q

Steamboat Willie Example

A
  • Mickey Mouse made his debut in a cartoon short “Steamboat Willie” in 1928
  • Under the Copyright laws in 1909 in effect, Steamboat Willie could enjoy copyright protection for 28 years plus the renewal of 28 years
  • the copyright act of 1976 (still in effect) extended the term for works made for hire to 75 years and so Steamboat willie would enter Public Domain in 2003
  • in 1998 the Sonny Bono Copyright Term Extension Act was passed which extended the copyright on works for hire to at least 95 years from publication. So now Steamboat Willie will become Public Domain in 2023
85
Q

What does it mean to have a copyright?

A
  • the holder of a copyright has exclusive rights to:
    1. Produce
    2. Copy
    3. Distribute
    4. Have attribution for
    5. Display
    6. Perform (with one exception)
    7. Prepare derivative works
86
Q

Infringement - what people sue under in copyright

A
  1. is this a valid copyright
    - –is it within the time period, can it be copyrightable?
  2. Did the person you’re suing do one of the seven things that the copyright holder alone has the right to do
  3. The Access/Similarity Spectrum Test
  4. The substantial/similar test
  5. Fair use
87
Q

The Access Similarity Spectrum Test

A

-how do we know if someone copied my idea? Has to have both access and similarity. If you don’t have high similarity but you have high access that is infringement, or vice versa. Both of them have to be present for it to be copyright infringement

88
Q

The Substantial/Similar Test

A

a. would and ordinary consumer or lay person regard the second work as “substantially the same” as the original work
b. The range of abstraction slide scale - the closer it gets to abstract the less it is copyright infringement and the more specific it gets the closer it is to copyright infringement. Abstract is the general idea of the theme and then closer to specific is copying the plot, characters, specific events, dialogue. In the middle is where most of the fighting happens

89
Q

Fair Use

A

-the purpose and character of use
A. purpose weighted AGAINST fair use
–i. the use was for a commercial purpose
–ii. the use was made in bad faith
B. Purpose in weighting IN FAVOR of fair use
–i. News
–ii. Education
–iii. Criticism and Review
–iv. Intermediate use (only use it to instruct yourself or teach yourself)
–v. parody
–vi. highly transformative use
C. The nature of the copyright work used
–weight AGAINST fair use
—i. the work infringed its “Core Creative Content” as opposed to “factorial content or process-related content” etc.
D. The amount and substantiality used
–i. Quantity
—the less the original work the used, the more likely that a fair use defense will succeed
–ii. Quality
—the closer the use is to the “heart” of the original work, the less likely is the Fair Use defense to succeed
E. The effect on the Market
—the owner of the original work can show lost profits to attributable to the new works existence
—defense is to show that the original owners profits would have declined anyways, wholly unrelated to the infringement

90
Q

Remedies for Infringement

A
  1. temporary injunction
  2. right to impound and destroy
  3. actual damages
    ALSO GET IF YOU REGISTER:
  4. statutory damages
  5. attorney’s fees and costs
91
Q

Moral Rights

A
  • a civil law concept on partially integrated into American Law by the Visual Right Act of 1990
  • only applies to visual arts
    1. Right to Attribution
  • –right to have you name associated with your work
  • –the right to have your name NOT associated with work that is NOT yours
    2. Right to the integrity of your work
  • –to apply, it must be shown, by expert testimony, that the work in question is of recognized stature
  • –intentional mutilation or distortion of destruction of the work is prohibited (even by the owner)

Business Law (4 decks)

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