Theories of Property Flashcards
Legal Positivism
Property exists only to the extent that it is recognized by the government (law). Property is a human invention. (Bentham)
Theory- Rule of Capture
protect first possession (first come, first serve). How unowned things become property.
Sources of Property Rights
capture and creation
Theory- Labor Theory
must mix labor with natural resources to acquire property rights.
Theory- Utilitarian
maximize societal happiness
maximize welfare of society (property owners know best what to do with their property)
law/ economic branch of property theory
IP- incentives creations
Theory- Civic Republican
ensure democracy
People gain autonomy and are able to participate in public institutions (elections)
Personal security + independence from government = guaranteed system of protected ownership rights.
Theory- Personhood
facilitate personhood development
Ownership allows us to form bonds with our things
Rule of Capture
The first person to take possession of a wild animal on “unowned” land is the lawful owner of the animal. Taking possession
includes killing the animal or depriving it of its “natural liberty.”
Pierson v. Post (fox case): Labor theory- P was supposed to wound the fox enough to make it his possession. Must wound it and take occupation.
Article I Section 8- Intellectual Property
Congress shall have the power to promote the progress and science and useful arts, by securing for limited times to authors and inventors the exclusive right to their perspective writings and discoveries.
Celebrities’ Right to Publicity
Common law claim; “name or likeness” of celebrity are recognized claims, expanded to identity/ soundalike (remember phrase “Here’s Johnny)
Majority- he right of publicity protects celebrities’ investment in their
images – that is what celebrities sell. Protecting this right prevents others from
being able to “steal” (freeriding) their cultivated image.
