Lecture Notes: Property Law - Public Trust, Quasi-Property, and the Right of Publicity

Foundations of Property Ownership and Incentivization

• Establishing Property Rights: Ownership is not natural but recognized by courts and political decision-makers to protect specific interests.
• Basis of Recognition: Courts exercise discretion to identify property interests arising in various contexts.     - Pearson v. Post: The court had the liberty to grant ownership of a fox to either the pursuer or the capturer, or to neither, based on legal principles.     - Keeble v. Hickeringill: The court could have assigned property rights to the land owner where the ducks were located or, as they leaned toward, the person whose livelihood depended on capturing those ducks.
• Core Motivation for Ownership: The primary reason for recognizing property interests is to provide incentives (e.g., incentivizing the capture of ducks or the pursuit of foxes).
• Expansion of Property Interests: Legal systems constantly interrogate whether property interests should extend into non-tangible realms:     - Information and news.     - The human body and its components.     - Reputation and personality.     - Likeness and image (the "persona").

The Right to Exclude and its Limitations

• The Right to Exclude: Often considered one of the most foundational sticks in the bundle of property rights.
• Jacques Case: Articulates a "very strong understanding" of the right to exclude.     - Violations of this right can lead to significant punitive damages even if the actual damage caused to the property is nil or modest.     - The purpose is to discourage future violations and reinforce the owner's interest.
• Magadini Case: Represents a limitation or "dilution" of the right to exclude.     - Context: The need for human shelter during extreme weather (e.g., a cold night) may outweigh a property owner's right to exclude, especially in commercial spaces.
• Trading Off Interests: Courts witness situations where the interests of various parties are balanced against the owner's exclusionary power.

Public Access to Natural Resources: Matthews v. Bayhead Improvement Association

• Geographic Context: Set in New Jersey, specifically along the shoreline (often referred to locally as "Down the shore").
• Property Allocation: The Bay Head Improvement Association owned 6 out of the 67 parcels of land in the borough.
• Defining Beach Zones:     - Wet Sand Area (Foreshore): The area between the low tide and high tide lines. It is sometimes wet and sometimes dry.     - Dry Sand Area (Upland Sand): The sandy part of the beach beyond the high tide line up to the "vegetation line."     - Vegetation Line: The boundary where the sandy beach ends and private land/growth typically begins.
• The Public Trust Doctrine:     - The state maintains the wet sand area/ocean for common public use. All citizens have a right to access and enjoy this common ownership.
• The Dispute in Matthews:     - The Bayhead Improvement Association, a non-profit operating similarly to a municipality (quasi-public), limited its membership to residents of Bayhead.     - Membership granted access to the dry sand areas managed or leased by the association.     - Ms. Matthews, a non-resident, challenged this, claiming that as a co-owner of the wet sand, she must be allowed access through the dry sand.
• The Court's Ruling:     - The court held that the Public Trust Doctrine is meaningless if the public cannot actually reach the ocean.     - Easement by Necessity: The public must be allowed to cross the dry sand to reach the wet sand.     - More than Passage: Reasonable enjoyment of the sea (the wet sand public trust) cannot be realized without some use of the dry sand for toweling off, rest, and relaxation.     - Limited Membership Extension: Rather than seizing the property, the court required the association to open its membership to non-residents for a fee.

Evolution of Beach Access in New Jersey and Other Jurisdictions

• Raleigh Avenue Beach Association: A later case where the right of reasonable access was extended to dry sand portions owned by strictly private entities.
• Atlantis Beach Club Case: Involved a club established in 1996 that owned the only beach in town and had been free until that point. The New Jersey Supreme Court extended the Matthews framework, forcing purely private owners to cede exclusive rights to the dry sand to facilitate public trust land enjoyment.
• Compensatory and Constitutional Questions:     - Compensation: If a property right is granted to the public that did not exist before, should the owner be compensated in damages?     - Judicial Takings: Does a court decision expanding public access amount to a constitutional taking of property requiring just compensation?
• Comparison with Western States:     - Oregon: Historically recognized the public trust doctrine as extending all the way to the vegetation line.     - New Jersey: Originally had a narrower interpretation, but over time, cases like Matthews and Atlantis Beach Club created an "accretion of public rights" that now approximates the Oregon standard.

Economic Theory of Goods: Private vs. Public

• Private Goods: Defined by two characteristics:     1. Rivalry: Use by one person prevents or precludes use by another (e.g., eating a slice of pizza or reading a specific physical book).     2. Excludability: The owner has a practical and legal ability to prevent others from using the good (e.g., a computer or a locked car).
• Public Goods: Defined by the absence of rivalry and excludability:     1. Non-rivalry: One person's consumption does not diminish the good for others.     2. Non-excludability: It is difficult or impossible to stop non-payers from accessing the benefit.
• Classic Example (The Lighthouse): Once constructed, any boat can see the light; the light seen by one boat does not reduce the light available to another. A lighthouse owner cannot easily exclude specific boats from seeing the beam.
• Information as a Good:     - Information is fundamentally non-rivalrous (knowledge shared is not knowledge lost by the giver).     - IP law (patents, copyrights) represents the privatization of information to incentivize costly discovery/innovation. Without the ability to monetize (exclude), people may not invest in acquiring new data/know-how.

Quasi-Property and Unfair Competition: INS v. AP

• The Parties: Associated Press (AP) and International News Service (INS), two rival 20th-century news services.
• The Act of "Free-Riding": INS would wait for AP to publish news, then copy stories from bulletin boards or early East Coast newspaper editions to sell in their own evening or West Coast editions.
• Legal Concept of "Hot News": The value of news is time-sensitive. INS was accused of "reaping where they had not sown."
• The Court's Ruling: The Supreme Court recognized a Quasi-Property Interest.     - Limited Nature: AP does not own the news against the public (an individual reading the news can share it for free with a barber, for example).     - Exclusivity against Competitors: AP has a property right specifically against rival businesses that would undermine AP's livelihood by stealing and monetizing their work.
• Policy Justification: Similar to Keeble, the law must protect meaningful trade from unfair interference to ensure the service (news gathering) remains viable.

The Right of Publicity and the Persona: White v. Samsung

• The Ad: A Samsung advertisement featured a robot in a blonde wig and gown, standing next to a letter-board similar to the "Wheel of Fortune" set.
• Legal Conflict: Vanna White sued for misappropriation of her identity.
• California Statute: Protects against misappropriation of "name or likeness." White failed here because the ad did not use her name or a literal picture of her.
• The Holding: The Court of Appeal allowed the case to proceed, ruling that the right of publicity extends beyond name and likeness to anything that captures the celebrity's "identity."
• Remedies for Metadata and Persona Theft:     - Property Rule: Protection via specific relief (injunctions to stop the ad).     - Liability Rule: Protection via damages (licensing fees or restitution of profits).
• Dissenting Opinion (Kaczynski):     - Argued that over-protecting persona stifles creativity in Hollywood.     - Noted that most creativity relies on borrowing from previous content.     - Questioned if being famous requires such strong incentives (Was Vanna White insufficiently invested in her success without this right?).     - Noted the potential conflict with other IP holders (e.g., do the creators of Wheel of Fortune own the context that makes Vanna recognizable?).

Property Interests in the Human Body: Moore v. Regents of the University of California

• Facts: John Moore had leukemia; his doctors at UCLA removed his spleen and realized it had unique, valuable cells. They developed a patentable "cell line" that was highly profitable.
• Claim: Moore sued for Conversion (civil theft), asserting he owned the cells removed from his body.
• The Holding: The California Supreme Court rejected the conversion claim.
• Rationale:     1. Lack of Precedent: No clear case law states people own their removed organs.     2. Policy Interests: Recognizing such a right would impede medical research by making every researcher liable to every sample source.     3. Legal Alternatives: Moore's rights were sufficiently protected by the "breach of informed consent" and "disclosure" claims.     4. Legislative Matter: The court felt the legislature was better suited to create such a property interest.
• Dissent (Justice Mosk): Utilized the "bundle of rights" theory. Even if Moore lacked the right to exclude researchers, he should have retained the right to share in the profits derived from his physical tissue.
• Named Example: Henrietta Lacks, whose cells (HeLa line) were used extensively by scientists without her knowledge or compensation.

The Right to Alienate: Types of Marketability

• Alienability: The capacity to transfer property to others through sale or gift.
• Categories of Transferability:     1. Fully Alienable: Most common goods (clothes, cars).     2. Fully Inalienable: Cannot be given or sold (e.g., Driver's licenses, law practicing licenses).     3. Inalienable by Sale (Gifts Only): You can donate but not sell (e.g., Kidneys, babies for adoption, Academy Awards/Oscars).     4. Inalienable by Gift (Sales Only): Often seen in bankruptcy or trusts to protect creditors/beneficiaries.
• The Case of the Oscar: Recipients explicitly agree not to sell the physical award. If they try, it must be offered back to the Academy (often for a nominal fee like $1$ dollar).
• Ethics of Body Part Markets: Debate continues on why we prohibit markets for kidneys or "laser eyes" (hypothetical). Some argue it protects the poor; others argue it prevents efficient allocation to those who could serve society.

Questions & Discussion

• Audience Question regarding the Matthews Case: A student asked how the specific ownership of parcels (association vs. private) factored into the wet/dry sand debate.     - Response: Professor Cahill clarified that the association owns the narrow strips/passageways from the street to the sand. While Matthews focused on the quasi-municipal nature of the association, later cases like Atlantis Beach Club showed that the public access right eventually overran the distinction between private and quasi-public land.
• Audience Question regarding the Oscar Sale: A student asked if selling an Oscar was "illegal" (criminal) or "invalid" (voidable contract).     - Response: Professor Cahill explained it is primarily a contractual invalidation. The transaction can be undone, and the physical award would return to the Academy, not the seller.
• The "Laser Eyes" Hypothetical: Used to illustrate the Moore case. If a scientist took a sleeping person's unique "laser eyes" and patented a product from them, would the victim only be entitled to damages for the physical harm of the removal, or a share of the invention's profits?     - Response: The Moore case suggests the victim would not have a property stake in the resulting intellectual property (the patent) despite the unique nature of their biological "magic."