Chapter 13: Property and Intellectual Property
Learning Objectives
- Distinguish real property from personal property, and describe the ways each kind of property can be owned and transferred.
- Explain landlord–tenant relationships and the rights and duties of each party.
- Identify the four main forms of intellectual property (trademarks, patents, copyrights, and trade secrets) and what each one protects.
- Analyze infringement and the main defenses, including fair use.
- Explain the legal issues raised by digital content and AI-generated works, and the basics of protecting IP internationally.
Week 13. Chapter content to be written. The description below sets out what the chapter will cover.
A business's most valuable assets are often its property, and more and more of that property is intangible: a brand name, a patented process, proprietary software, or a customer list. This chapter covers the basics of real and personal property law and then focuses on the intellectual property regimes that protect ideas and creative work.
13.1 Planned Sections
Personal Property. Tangible and intangible property, acquiring ownership (purchase, possession, gift, accession, confusion), lost, mislaid, and abandoned property, and bailments, including the bailee's duties in business settings such as parking, storage, and shipping.
Real Property. Fee simple and other ownership interests, concurrent ownership, easements, licenses, and the steps in a real estate sale (deeds, recording statutes, and title insurance). Adverse possession. Zoning and eminent domain.
Landlord and Tenant. Types of tenancies, the lease, the implied warranty of habitability, rent, assignment and subleasing, and eviction. Commercial lease issues that matter to small businesses.
Trademarks and Related Property. Distinctiveness, registration under the Lanham Act, infringement and likelihood of confusion, dilution, trade dress, service and certification marks, and domain names and cybersquatting.
Patents. Patentable subject matter, novelty, non-obviousness, utility, the application process, infringement, and remedies. Software and business method patents after Alice.
Copyrights. What can be copyrighted, how long protection lasts, infringement, fair use, the Digital Millennium Copyright Act, and copyright questions raised by generative AI (training data and authorship of AI output).
Trade Secrets. The Defend Trade Secrets Act, reasonable steps to keep information secret, misappropriation, and nondisclosure agreements.
International Protection. The Paris Convention, the Berne Convention, the TRIPS Agreement, and the Madrid Protocol.
13.2 Featured Case
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The rap group 2 Live Crew recorded a parody of Roy Orbison's "Oh, Pretty Woman" after the copyright owner refused permission. The Supreme Court held that a parody's commercial character does not make it presumptively unfair. The key question is how "transformative" the new work is, meaning whether it adds new expression, meaning, or message. The Court sent the case back to be weighed under all four fair-use factors.
Why this case: It is the leading Supreme Court decision on fair use and transformative use. Those concepts are now central to disputes about remixes, memes, and training generative AI models.
Discussion question: Apply the four fair-use factors to an AI model trained on copyrighted books. Which factors favor the AI company, and which favor the authors?
13.2.1 Short Case Summaries
- Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014). Carrying out an abstract idea (here, intermediated settlement) on a generic computer is not patentable. (Patents)
- Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805). A dispute over who owned a fox: the hunter who chased it or the man who killed it. Property in wild animals comes from actual capture, not pursuit. (Personal property: acquiring ownership)
13.3 Planned Features
- A table comparing the four types of IP on what each protects, how long protection lasts, and how it is obtained.
- An exercise in which students design an IP protection plan for a fictional consumer product startup.
- Key terms: bailment, fee simple, easement, adverse possession, eminent domain, leasehold, trademark, trade dress, dilution, cybersquatting, patent, copyright, fair use, trade secret, misappropriation.