Property in Intangibles

Question 1

Publicity: Tennessee ex rel. Elvis Presley International Memorial Foundation v. Crowell

Answer 1

TN (1987) “Elvis Charities”
o F: Two organization w/ name so similar there is confusion btwn them
o I: Should Elvis be able to control (monetize and exclude) name and image while alive and after death?
o H: Yes, to both – essence of property is the right to exclude and the right to enjoy (formally recognizes right to publicity)
• Note – some states don’t recognize the right, or say that it dies with the person or imposes some temporal limit

Question 2

Ideas:

• Downey v. General Foods

Answer 2

NY (1972) “Jell-O”
o F: P had sent suggestion letter to D for product name to advert. Jell-O to children; shortly thereafter they release product w/ similar name/marketing (“Mr Wiggle”)
o H: For D; in order to constitute property, there must be originality and novelty in the idea
 Here, D had used wiggle in the advertising before
 D used outside ad agency who had no knowledge of P’s suggestion
• Property right in ideas may be created by contract
• Traditional rule – no property in an idea only in its expression – e.g. it must be in a fixed form
o Copyright – protection only for published work

Question 3

Ideas: • Holmes v. Hurst –

Answer 3

SCOTUS (1899)
o F: Serial essays pub’d monthly in the Atlantic (12); Holmes gets the copyright for all 12 essays compiled as one; D sells the 12 essays in one volume because the individual essays were not copyrighted by the Atlantic
o H: For D; P failed to individually copyright the stories, thus they are unprotected
• Patents – must have social utility, must be novel, must show “invention”

Question 4

News & Its Presentation:

• INS v. Associated Press

Answer 4

SCOTUS (1918) – published news is not protected by copyright, but here INS guilty of unfair competition
o F: INS wire service republished AP cables
o Holmes concurrence – wouldn’t have been violation of INS had credited AP as source
o Brandeis – expresses concern about attaching even quasi-property labels on things that we don’t typically consider property

Question 5

News & Its Presentation:

• NBA v. Motorola

Answer 5

2d Cir (1997) “Basketball Pager”
o F: D sells pager that displays info from NBA games in progress; P claims that this is “hot news” being misappropriated by D (NBA has right to recorded broadcasts of live events)
o H: For D; 5 part test from INS not satisfied
 1. P must generate or gather information at a cost
 2. Info is time sensitive
 3. D’s use of information constitutes free-riding on P’s efforts
 4. D is in direct competition w/ product or service offered by P
 5. Ability of parties to free-ride on efforts of P would reduce D’s incentive to produce the product or substantially threaten its quality
o No competitive effect here

Question 6

Cyberspace:

• Lund v. Commonwealth

Answer 6

VA (1977) “Computer Time”
o F: D charged with grand larceny for stealing “computer time”
o H: conviction reversed
 All D had actually taken away were the computer printouts based on the cards he put through machine; those printouts didn’t meet the $100 minimum for grand larceny
 PR argues that he was taking “time” from the lab  Ct. rejects, crime cannot just be use of a service
o After Lund, statute expanded defn of larceny to include computer time and services
• Non-permissive access to computers = modern form of trespass; courts have construed as trespass on land worthy of injunctive relief