May 20th Notes

Business Law
May 20, 2010

-Ugly people are convicted more often and get longer sentences

-assignment posted
    -one for slackers, one for diligent

Property Law
-intellectual property
-real property
-landlord tenant law
-personal property

Kinds
1.Real
    -freehold or nonfreehold

2.Personal
    -tangible or intangible

Intellectual Property
-governed with federal law and statute
-from fruits of mental and artistic labor
-owners of intellectual property are based on article 1 section 8 of the constitution
-on patent, trademark, copyright

-patents protect inventions and tangible
-copyrights protect art and written, music and expressed
-trademarks protect symbols

Patents
-inventor rights to make, use and sell for 20 years from filing the application
-mechanical, chemical, process
must be novel, nonobvious, useful

Copyrights
-statutory property right
-exclusive rights for limited duration
-life of authors plus 70 years or 95 years from publication if a corporation
-once expired anyone can use the work for free

rights to
-reproduce the work
-make derivative works
-distribute to publication
-perform certain works
-publicly display

What is protected?
-expressions of an idea, not the idea itself
-must be original and fixed in a medium
-automatic since 1978

Infringement
-form and expression if copied
    -fair use exception
        -permits copy for criticism and comment, nonprofit, educational uses, new reporting, scholarship, research and parody

Fair Use (on test)
-in resolving fair use disputes
1.purpose and character of the use (transformative factor)
2.nature of the copyrighted work
3.amount and substantiality of the portion taken
4.effect of the use upon the potential market

-do not take the heart of the work

Assignment
Magical Copyright
-Who has a right to catalog?
-pick a side and do the factors yourself
    -you can either agree or disagree with the judge
    -tie in all 4 factors and only one page

Obama Hope Poster
Fairey v. Associated Press

Copyright Software
-1980 software copyright act
-”literary work”
-a program is set of statements or instructions to be used directly or indirectly in a computer in order to bring about a particular result

Trademarks
-emblems on products
-easily identified

Trade Secrets
-formula, device, recipe, method, compilation of information

Real Property
-”land” and whatever is attached to it
-owned by the government by an entity or by an individual

Property ownership can be viewed as a “bundle of rights” that include:
–Right to possess.
–Right to sell.
–Right to give.
–Right to lease.
–Right to destroy

Ownership interests are classified as either Possessory or Non-Possessory: 
-A possessory interest such as a fee simple, life or leasehold estate, gives the owner a right to possess, or exclusively control, the land.
-A non-possessory interest – such as an easement, profit or license – does not give the owner a right to possess the land.

The basic ownership interests – or freehold estates – in real property are:
–Fee Simple Absolute
–Fee Simple Defeasible (or Conditional)
–Life Estate

There are basically two ways property can be owned.
–Entirely
–Concurrently

Tenancy in common
Joint tenancy
Tenancy by the entirety
Community property

Community Property
Governed by RCW 26.16.030
Property acquired after marriage by either husband or wife or both, is community property.
Property acquired before marriage or that is received by gift or inheritance is the separate property of the spouse who acquires it.

Future
–Separate property must remain separate to retain its character.
Either spouse, acting alone, may manage and control community property – except neither may
–Will more than one-half of the community property
–Give community property away, without the consent of the other or
Sell or encumber community real property without the other spouse joining in the execution of the documents and the documents must be acknowledged by both spouses.

Non Posessory Property
There are two kinds of future interests
–A reversionary interest in which the Grantor retains right to re-possess land when Grantee’s life estate expires.
–A remainder interest in which the Grantor assigns/transfers/sells the future interest to a third party, who now has a remainder. When the Grantee dies, his or her interest passes to the third party.

There are 4 non-possessory interests
–Easement - the right of a person to make limited use of real property without taking anything from the property.
–Profit - the right to enter land and take away some part of the land itself or some product of the land.
–License – the right to temporarily enter land
–Mortgage – a security interest in property

Restrictive covenant
–A restriction on the use of land that is agreed to by the original owners and then becomes a restriction that attaches and follows the title

Real property can be transferred by:
–Sale or Deed
–Death of owner
–Gift
–Seizure by a creditor
–Eminent domain
–Adverse possession

A deed is the instrument setting forth the interests in real property being transferred.
It proves ownership of the property.
Two types:
–Warranty Deed
--Quitclaim Deed

–Recording a deed (or any interest in real property) puts the public on notice of the new owner’s interest in the land and prevents the previous owner from fraudulently conveying the same interest to another buyer.

Washington has a race-notice statute
–First to file with the county auditor has priority in interest

The sale of real property is governed by a series of contracts
–Listing agreement
–Earnest money agreement
–Contract for the sale of land
Usually a “mortgage” or installment contract

What is a mortgage?
Who is the owner of the property?

Transfer will be by
–Will
–Transfer under joint tenancy
–Intestate succession

Real property can be transferred as a gift
–Still need deed
–Recording of deed

Ownership interest is established by the use of someone else’s property for a specified number of years.  Must be
–Actual
–Open
–Adverse to the owner’s interest
–Exclusive
This can apply to “use” as well (prescriptive easement)

The power of the government to take private property for a public purpose – for just compensation.
–Schools
–Roads
–Airport runways
Partial “taking” (by regulation or otherwise) without just compensation is unconstitutional

Landlord and Tenant Laws
►Anyone who rents office space (or housing) is subject to various state and federal Landlord-Tenant laws.
►The owner of the property is the lessor or landlord and the person who rents the property is the lessee or tenant.
►The contract is called the lease. 

►RCW title 59 governs landlord and tenant law in Washington
§Residential
§Commercial
§
http://washingtonlawhelp.org/WA/index.cfm

►Lease – a contract in which the owner of property (landlord or lessor) gives someone else (tenant or lessee) the right to use the property for a designated period of time. 

Types of Tenancy
►Tenancy for years – establishes a set period during which the tenant will have control.  Then the right to possession of the property reverts to the owner.
►Periodic tenancy – created for a set interval of time (week to week, month to month). If neither party terminates at the end of the period, the tenancy continues.
►Tenancy at will – rental to continue for as long as both lessor and tenant agree.
►Tenancy at sufferance – Tenant has no legal right to remain, but is not removed.

Landlords
►Turn over possession of the premises
►Quiet enjoyment
►Implied warranty of habitability
►Eviction/Unlawful detainer
►Constructive eviction
►Security deposit
►Discrimination laws

Tenants
►Pay rent
►Properly use premises


Personal Property
Personal property is generally any property that is not real property.
–Sometimes referred to as chattel.
–Includes tangible property (any property that you can put your hands on and move)
–Includes intangible property (property that has value but that only is moved or possessed constructively)

Acquiring Ownership
Personal property can be acquired through:
–Possession
–Production
–Gift
–Will or Inheritance
–Accession
–Confusion or Commingling

Finders Keepers
Depends on whether the goods were
–Mislaid – goods voluntary placed by the true owner, then inadvertently forgotten. 
•Finder is a caretaker or bailee for the true owner
–Lost – goods accidentally left by the owner.
•Finder becomes owner; has title against everyone but true owner
–Abandoned – goods purposefully discarded by the true owner, with no intention of recovering the property.
•Finder has title against everyone – including  the original owner.

Bailment
Formed by the delivery of personal property – without transfer of title – by the owner of property (Bailor)  to another (Bailee), usually under an agreement for a particular purpose. 
The property must be returned by the Bailee to the Bailor, or to a third party, as directed by the Bailor, in the same or better condition.

Ordinary Bailments
Three types of ordinary bailments:
–For the sole benefit of bailor
–For the sole benefit of bailee
–For the mutual benefit of both bailor and bailee

Rights and Duties
Right to possess property temporarily (title does not pass)
Right to use bailed property
Right of compensation – to be reimbursed for costs and services as provided by contract
Right to Limit Liability
Duty to return property in same condition to bailor
–Otherwise Bailee may liable for conversion or negligence

Bailor Rights
Right to have property protected
Right to have property back at end of bailment – with   service or repair done properly
Right to not be bound to any limitation on liability unless bailor knows of the limitation
Duty to provide safe goods
–If a mutual benefit bailment this means free from known or hidden defects
–If it is for the sole benefit of bailee, there is a duty to notify of any known defect

Rights of Bailee
Right to possess property temporarily (title does not pass)
Right to use bailed property
Right of compensation – to be reimbursed for costs and services as provided by contract
Right to Limit Liability
Duty to return property in same condition to bailor
–Otherwise Bailee may liable for conversion or negligence

Special Bailments
Publicly licensed common carriers – those which  provide transportation services to general public are held to the highest standard.

Warehouses:
–Owe duty of reasonable care
–Cannot exculpate themselves from liability, but can limit liability
Innkeepers:
–Strict liability imposed, unless modified by statutes