Nearly everything we come into contact with is property. However, it is only property because the law says it is property. Thus, we need to determine why we recognize property. In other words, what purpose does the law have in recognizing property. There are five theories for this purpose.
Five Theories of Property
Protect First Possession
This approach is the “first come first serve” approach. Meaning, often, property became owned by someone who was the first person to come into contact with that property. This worked well when there was a lot of supply and not a lot of people, but with the growth of the United States, things have changed significantly.
This theory answers how we got property, but not why we recognize those rights.
Encourage Labor
This theory is based on Locke’s theory of property. His theory is that the land we are given by God is common, everyone could have a claim. However, the land has little value until labor was mixed in. Therefore, those who added the labor would claim the property. This theory shaped a lot of United States land development. Now, with most land already owned, this theory works well with newly created property (intellectual property).
Maximize Societal Happiness
Recall the utilitarian theory where we do something to largely benefit society. Property is the same way. We want to ensure that people use the property in a way that best values society. How? We promise that the all property is used, exclusive to the owner, and transferable. With these three tools, the individual has protection to use the property in an efficient way. For example, the property owner has the freedom to harvest a field without fear of the laborious goods being taken. The farmer can then sell those goods to the public who benefit from the efficient use of the land.
Ensure Democracy
Although this theory was used more in the early founding of the United States, it is less prominent today. What it states is that a person has a larger stake in democracy when they have private property. That is, when property is owned by an individual, rather than the government, the individual has a larger stake in what happens with political affairs. If the government owned the property, then the individual would be subject to the government for the continued need of basic everyday necessities.
Encourage Personal Development
This theory encourages the idea that people become attached to personal objects or places. For example, a child who grows up in one home may feel particularly drawn to that place. It is a place where they developed and matured. As a result, the home is a part of the individual and taking it away would be taking away that part of the individual’s life.
The idea of this theory is that if there are multiple claims on a property, the claimant who personally developed due to the property would have the largest claim.
We can put these theories into action with our first cases of this semester.
Pierson v. Post
3 Cai. R. 175 (Sup. Ct. N.Y. 1805).
Question
Who owns the fox? Was pursuit enough to obtain possession?
Rule
Majority
- A person who first takes possession would be the individual who owns it. Even though another is pursuing, and instigated the pursuit, it is not sufficient to obtain possession.
Dissent
- The person who started the pursuit should obtain possession, for societal benefit.
Holding
Pearson is the possessor of the fox, being the first to establish occupancy.
Facts
Post was out hunting with his dogs when he came upon a fox and began to chase it. Pearson, noticing Post’s pursuit, intervened by killing the fox and taking it away from him.
Post sued and was awarded the fox. Pearson appealed.
Analysis
This is a case of first impression. Meaning, this is the first time the court heard an issue like this. The majority said that mere pursuit is not sufficient to determine who is the possessor of the fox. Instead, because Pearson killed and took the fox, he was the first to occupy it. Therefore, he took possession. The majority also liked this rule because it provided a clear rule of ownership.
The dissent disagrees. They say that it would benefit society to have the eradication of the fox (all parties agreed to that). As a result, you want to encourage all parties involved to that endeavor. If Post knew that his ownership was lacking if someone beat him to the prize after he started, why would he start at all? Why would he purchase dogs, a gun, traps, and other equipment if somebody can just come and take his claim? Consequently, the dissent believes that ownership belonged to Post.
Takeaway
We see a couple of property theories at work in this case. First, that of first possession (who claimed the fox first, and when?). Second, labor (when is sufficient labor put in by Post?). Third, a utilitarian approach (clear rules v. eradication of a pest).
Additional Notes
This case applies to wild animals on unowned land.
The rule here is that the fox is acquired through occupancy. So, it is really a determination of what is occupancy. Post is arguing that he had already occupied the fox because he was in pursuit. There is a spectrum of what may be a stronger claim. On the lower end, occupancy could have been defined as sight, or reasonable pursuit. Instead, the court determines that mere pursuit is not sufficient to establish occupancy. On the low end of the spectrum, you would have to at least catch the fox.
This was a case of first impression. So the court had the first opportunity to determine what the rule was. They relied of philosophers to determine that it should be more towards “capture,” rather than “pursuit.”
We can each see each theory in action, in some sense, through both the majority and the dissent.
White v. Samsung Electronics America, Inc.
971 F. 2d 1395 (9th Cir. 1992).
Question
Is Vanna White subject to damages for an ad, posted without her permission, picturing a robot on the Wheel of Fortune set (postured and dressed as Vanna White)?
Rule
Although an ad may not use the name or likeness of an individual, they may still have a right of publicity (right of their name and likeness not being used for personal gain). This can occur when the ad is deliberately seeking to appropriate a celebrity.
Holding
Affirmed in part, reversed in part and remanded. The ad was not in the likeness of Vanna White. However, it violated her right of publicity in how it appropriated her.
Facts
Vanna White is the celebrity on the popular Wheel of Fortune gameshow. Her job is to turn over the tiles of letters people guess in the show.
Samsung is a company that sells technological products. They ran several ads of how their products would last well into the future. One of the ads depicted a robot on the Wheel of Fortune set dressed in a wig and posed in a similar manner as Vanna White. The ad was captioned “longest running game-show.”
Vanna White sued saying that this was a violation of California Civil §3344 and the California common law right of publicity. In the trial court, summary judgment was awarded on behalf of Samsung on all claims. White appealed.
Analysis
A robot is not in the likeness of a human being. This is also true of soundalikes and more. However, this is not the only way a celebrity’s cause of action can be recognized. Instead, it is possible to appropriate an identity by impersonation, even if no name or likeness was used.
Taken altogether, it is not surprising that this ad was impersonating Vanna White. She is the only person on Wheel of Fortune who has that job and dresses and poses in that manner. You would not be surprised to hear the ad was named (behind the scenes) the “Vanna White ad”.
White v. Samsung Electronics America, Inc.
989 F. 2d 1512 (9th Cir. 1993).
In essence, this is a dissent from the decision not to rehear the case above.
Analysis
The dissent here says that it is “now a tort to remind the public of a celebrity.” The fear here is that by allowing Vanna White to have this right, a right the dissent says is created not new, the rights of the public and other creative insight is diminished. As a result, the world is worse off for limiting the creative ability to only the originator. This does not allow for any new creative insight. For instance, a person who writes a book is entitled to the book, but the ruling would restrict any others who want to build off of the ideas of the book.
Takeaway
I wonder at how true the thought of the dissent is. Is it really that expansive? Have celebrities used this opinion to their advantage, claiming damages for anything that appropriates them without permission? What about the social benefit, the utilitarian approach, to property? How harmed is society for this protection of publicity, and restriction on creativity? I do not know the answer, but I am curious.
We also see the difference between Pearson and White. Pearson discusses being the first to seize property. Property that is already there. White, on the other hand, discusses property creation. It makes sense that we could see differing results and opinions.
Additional Notes
This case is another example of how the theories of property can influence who has a claim over certain property. Ultimately, policy defines how property rules we make.
Overall Notes
This semester we will cover a wide variety of property based topics. We will learn the history of property, both the good and the bad.
At the founding of the Declaration of Independence, property is not listed as a natural right. Property is dictated by law, to determine who owns and controls what. Each State develop rules for their State. Property only exists only where it is recognized by government.
This week, we are trying to address the concept of property by focusing on why we recognize property.
There are two broad categories of property. Real Property, and Personal Property.
First, we start with why does property exist?
First Possession
This is the first come first serve basis. The first person to take possession of something is the owner of it. This can be whether there is property already present, or if a person is creating property. An example from my life would be the first to obtain a toy. It was my toy, not a siblings.
Labor Theory
Labor theory is when you labor on a property and therefore you have a property interest. So, you add value to the property, it thus becomes your property. One example is writing a school paper. You put work into that assignment, thus, that paper is your property. Other examples include farming, fishing, etc.
Utilitarian Theory
You own the property because you want to maximize happiness for the individual. In other words, you want to put rules on who owns the property to make the most use of the property. An example of this is is a farmer who is allowed to own the property, with the comfort of protection against intruders, prepares the plan to be most useful.
This theory can be used for pretty much every argument and all you are trying to determine is who has the better argument.
Civic Republican Theory
You own property to encourage civil involvement in the politics of the country. In other words, the government allows private ownership so that the people care about what happens to the property. An example would be homeownership who pay taxes for the improvement of the area.
On this subject, the book says “we want you to come to the government as right holders, not as beggars.”
Personhood Theory
This is when an individual has a personal attachment to an object to where it becomes a part of your identity. As a result, you have a claim of ownership (since it is really a part of you). Family heirlooms, pets, childhood homes, etc. are all examples.
All of these theories overlap. For instance, planting a garden may cause you to be attached, but there was also labor involved. So, it is up to the court to determine which theories should be more heavily involved.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
