Law School

Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual property. Property can be exchanged through contract law, and if property is violated, one could sue under tort law to protect it. The concept, idea or philosophy of property underlies all property law. In some jurisdictions, historically all property was owned by the monarch and it devolved through feudal land tenure or other feudal systems of loyalty and fealty. Though the Napoleonic code was among the first government acts of modern times to introduce the notion of absolute ownership into statute, protection of personal property rights was present in medieval Islamic law and jurisprudence, and in more feudalist forms in the common law courts of medieval and early modern England.

Trade dress is the characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress is a form of intellectual property. United States. Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another. For example, the shape, color, and arrangement of the materials of a children's line of clothing can be protectable trade dress (though, the design of the garments themselves is not protected), as can the design of a magazine cover, the appearance and décor of a chain of Mexican-style restaurants, and a method of displaying wine bottles in a wine shop. Utility model A utility model is a patent-like intellectual property right to protect inventions. This type of right is available in many countries but, notably, not in the United States, United Kingdom or Canada. Although a utility model is similar to a patent, it is generally cheaper to obtain and maintain, has a shorter term (generally 6 to 15 years), shorter grant lag, and less stringent patentability requirements. In some countries, it is only available for inventions in certain fields of technology and/or only for products. Utility models can be described as second-class patents. While no international convention requires countries to protect utility models (unlike copyright, trademarks or patents) and they are not subject to the TRIPS agreement, they are subject to the Paris Convention for the Protection of Industrial Property, which means that countries that do protect utility models are required to comply with rules such as national treatment and priority. Utility models are also available (in countries that have a utility model system) via the Patent Cooperation Treaty (PCT) system of international patent applications.

In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care. The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the reasonable person. It was famously described in Vaughn v Menlove (1837) as whether the individual "proceed with such reasonable caution as a prudent man would have exercised under such circumstances'.

In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals who have no current direct relationship (familial or contractual or otherwise) but eventually become related in some manner, as defined by common law (meaning case law). Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law. Development of the general duty of care. At common law, duties were formerly limited to those with whom one was in privity one way or another, as exemplified by cases like Winterbottom v. Wright (1842). In the early 20th century, judges began to recognize that the cold realities of the Second Industrial Revolution (in which end users were frequently several parties removed from the original manufacturer) implied that enforcing the privity requirement against hapless consumers had harsh results in many product liability cases. The idea of a general duty of care that runs to all who could be foreseeably affected by one's conduct (accompanied by the demolishing of the privity barrier) first appeared in the judgment of William Brett (later Lord Esher), Master of the Rolls, in Heaven v Pender (1883). Although Brett's formulation was rejected by the rest of the court, similar formulations later appeared in the landmark U.S. case of MacPherson v. Buick Motor Co. (1916) and, in the UK, in Donoghue v Stevenson (1932). Both MacPherson and Donoghue were product liability cases, and both expressly acknowledged and cited Brett's analysis as their inspiration. Scope. Although the duty of care is easiest to understand in contexts like simple blunt trauma, it is important to understand that the duty can be still found in situations where plaintiffs and defendants may be separated by vast distances of space and time. For instance, an engineer or construction company involved in erecting a building may be reasonably responsible to tenants inhabiting the building many years in the future. This point is illustrated by the decision of the South Carolina Supreme Court in Terlinde v. Neely, later cited by the Supreme Court of Canada in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.  1 S.C.R. 85: The plaintiffs, being a member of the class for which the home was constructed, are entitled to a duty of care in construction commensurate with industry standards. In the light of the fact that the home was constructed as speculative, the home builder cannot reasonably argue he envisioned anything but a class of purchasers. By placing this product into the stream of commerce, the builder owes a duty of care to those who will use his product, so as to render him accountable for negligent workmanship. Responsibility. Although the idea of a general duty of care is now widely accepted, there are significant differences among the common law jurisdictions concerning the specific circumstances under which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else's problems; as Justice Cardozo put it, to rule otherwise would be to expose defendants "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class." There must be some reasonable limit to the duty of care; the problem is where to set that limit.

In criminal law, criminal negligence is a surrogate mens rea (Latin for "guilty mind") required to constitute a conventional as opposed to strict liability offense. It is not, strictly speaking, a mens rea because it refers to an objective standard of behavior expected of the defendant and does not refer to their mental state. Concept. To constitute a crime, there must be an actus reus (Latin for "guilty act") accompanied by the mens rea. Negligence shows the least level of culpability, intention being the most serious, and recklessness being of intermediate seriousness, overlapping with gross negligence. The distinction between recklessness and criminal negligence lies in the presence or absence of foresight as to the prohibited consequences. Recklessness is usually described as a "malfeasance" where the defendant knowingly exposes another to the risk of injury. The fault lies in being willing to run the risk. But criminal negligence is a "misfeasance" or "nonfeasance", where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest. In some cases this failure can rise to the level of willful blindness, where the individual intentionally avoids adverting to the reality of a situation. (In the United States, there may sometimes be a slightly different interpretation for willful blindness.) The degree of culpability is determined by applying a reasonable-person standard. Criminal negligence becomes "gross" when the failure to foresee involves a "wanton disregard for human life". The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are: 1. subjective where the court attempts to establish what the accused was actually thinking at the time the actus reus was caused; 2. objective where the court imputes mens rea elements on the basis that a reasonable person with the same general knowledge and abilities as the accused would have had those elements; or 3. hybrid, i.e., the test is both subjective and objective. The most culpable mens rea elements will have both foresight and desire on a subjective basis. Negligence arises when, on a subjective test, an accused has not actually foreseen the potentially adverse consequences to the planned actions, and has gone ahead, exposing a particular individual or unknown victim to the risk of suffering injury or loss. The accused is a social danger because they have endangered the safety of others in circumstances where the reasonable person would have foreseen the injury and taken preventive measures. Hence, the test is hybrid.

Res judicata (RJ), also known as claim preclusion, is the Latin term for "a matter decided" and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) relitigation of a claim between the same parties. In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter. The doctrine of res judicata is a method of preventing injustice to the parties of a case supposedly finished but perhaps also or mostly a way of avoiding unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, and confusion. Common law. In common law jurisdictions, the principle of res judicata may be asserted either by a judge or a defendant. Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. A defendant in a lawsuit may use res judicata as defense. The general rule is that a plaintiff who prosecuted an action against a defendant and obtained a valid final judgment is not able to initiate another action versus the same defendant where: The claim is based on the same transaction that was at issue in the first action. The plaintiff seeks a different remedy, or further remedy, than was obtained in the first action. The claim is of such nature as could have been joined in the first action. Once a bankruptcy plan is confirmed in court action, the plan is binding on all parties involved. Any question regarding the plan which could have been raised may be barred by res judicata. The Seventh Amendment to the United States Constitution provides that no fact having been tried by a jury shall be otherwise re-examinable in any court of the United States or of any state than according to the rules of law. For res judicata to be binding, several factors must be met: The identity in the thing at suit. The identity of the cause at suit. The identity of the parties to the action. The identity in the designation of the parties involved. Whether the judgment was final. Whether the parties were given full and fair opportunity to be heard on the issue. Regarding designation of the parties involved, a person may be involved in an action while filling a given office (e.g. as the agent of another), and may subsequently initiate the same action in a differing capacity (e.g. as his own agent). In that case res judicata would not be available as a defense unless the defendant could show that the differing designations were not legitimate and sufficient. Scope. Res judicata includes two related concepts: claim preclusion and issue preclusion (also called collateral estoppel or issue estoppel), though sometimes res judicata is used more narrowly to mean only claim preclusion. Claim preclusion bars a suit from being brought again on an event which was the subject of a previous legal cause of action that has already been finally decided between the parties or those in privity with a party. Issue preclusion bars the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier case. It is often difficult to determine which, if either, of these concepts apply to later lawsuits that are seemingly related, because many causes of action can apply to the same factual situation and vice versa. The scope of an earlier judgment is probably the most difficult question that judges must resolve in applying res judicata. Sometimes merely part of the action will be affected.

International protection of related rights. Apart from the Rome convention, a number of other treaties address the protection of related rights:  Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Geneva Phonograms Convention, 1971). Convention Relating to the Distribution of Program–Carrying Signals Transmitted by Satellite (Brussels Convention, 1974). Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty, 1989).  Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1994). WIPO Performances and Phonograms Treaty (WPPT, 1996). Apart from the TRIPS Agreement, these treaties cannot truly be described as global: the Rome Convention had 83 signatories as of 2006, compared with 162 for the Berne Convention. Relation to authors' rights. Related rights are independent of any authors' rights, as is made clear in the various treaties. Hence a CD recording of a song is concurrently protected by four copyright-type rights: Authors' rights of the composer of the music. Authors' rights of the lyricist. Performers' rights of the singer and musicians. Producers' rights of the person or corporation that made the recording. Performers. The protection of performers is perhaps the strongest and most unified of the related rights. A performer (musician, actor, etc.) has an intellectual input in their performance over and above that of the author of the work. As such, many countries grant moral rights to performers as well as the economic rights covered by the Rome Convention (articles. 7–9), and the rights of paternity and integrity are required by the WPPT (article 5). Performers' rights should not be confused with performing rights, which are the royalties due to the composer for a piece of music under copyright in return for the license (permission) to perform the piece in public. In other words, performers must pay performing rights to composers. Under the Rome Convention (article 7), performers have the right to prevent: The broadcast or communication to the public of their performance, unless this is made from a legally published recording of the performance. The fixation (recording) of their performance. The reproduction of a recording of their performance. The WPPT extends these rights to include the right to license: The distribution of recordings of their performance, for sale or other transfer of ownership (Article 8). The rental of recordings of their performances, unless there is a compulsory license scheme in operation (Article 9). The "making available to the public" of their performances (Article 10), in effect their publication on the internet. Article 14 of the Rome Convention set a minimum term for the protection of performers' rights of twenty years from the end of the year in which the performance was made: the TRIPS Agreement (Article 14.5) has extended this to fifty years. In the European Union, performers' rights last for fifty years from the end of the year of the performance, unless a recording of the performance was published in which case they last for fifty years from the end of the year of publication (Article 3(100 }. In the United States, there is no federal statutory right in unfixed works such as performances, and no federal exclusive right to record a performance; some states, notably California, have performer rights laws, but as of 1988 these remain untested.

In copyright law, related rights (or neighboring rights) are the rights of a creative work not connected with the work's actual author. It is used in opposition to the term "authors' rights". Neighboring rights is a more literal translation of the original French droits voisins. Both authors' rights and related rights are copyrights in the sense of English or U.S. law. Related rights vary much more widely in scope between different countries than authors' rights. The rights of performers, phonogram producers and broadcasting organizations are certainly covered, and are internationally protected by the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations signed in 1961. Within the European Union, the rights of film producers (as opposed to directors) and database creators are also protected by related rights, and the term is sometimes extended to include the sui generis rights in semiconductor topologies and other industrial design rights. A practical definition is that related rights are copyright-type rights that are not covered by the Berne Convention.

Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the act of creating apprehension of such contact. Battery is a specific common law misdemeanor, although the term is used more generally to refer to any unlawful offensive physical contact with another person, and may be a misdemeanor or a felony, depending on the circumshttps://en.wikipedia.org/wiki/Offence_(law)tances. Battery was defined at common law as "any unlawful and or unwanted touching of the person of another by the aggressor, or by a substance put in motion by him." In more severe cases, and for all types in some jurisdictions, it is chiefly defined by statutory wording. Assessment of the severity of a battery is determined by local law. Generally. Specific rules regarding battery vary among different jurisdictions, but some elements remain constant across jurisdictions. Battery generally requires that: 1.   an offensive touch or contact is made upon the victim, instigated by the actor; and 2.   the actor intends or knows that their action will cause the offensive touching. Under the US Model Penal Code and in some jurisdictions, there is battery when the actor acts recklessly without specific intent of causing an offensive contact. Battery is typically classified as either simple or aggravated. Although battery typically occurs in the context of physical altercations, it may also occur under other circumstances, such as in medical cases where a doctor performs a non-consented medical procedure.

Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. Moral rights apply only to literary, dramatic, musical and artistic works, and also to films (where the director enjoys moral rights). The most important exceptions to be aware of are computer programs and employees. In most situations employees do not enjoy moral rights. The moral rights include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preservation of the integrity of the work allows the author to object to alteration, distortion, or mutilation of the work that is "prejudicial to the author's honor or reputation". Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work. Moral rights were first recognized in France and Germany, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928. Canada recognizes moral rights (droits moraux) in its Copyright Act (Loi sur le droit d'auteur). The United States became a signatory to the convention in 1989, and incorporated a version of moral rights under its copyright law under Title 17 of the U.S. Code. Some jurisdictions allow for the waiver of moral rights. In the United States, the Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, but applies only to a narrow subset of works of visual art. "For the purposes of VARA, visual art includes paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer". A photograph must be taken only for exhibition purposes to be recognized under this subcategory. Independent art is not a focus of this waiver, for VARA only works in protecting artwork that can be considered as having "recognized stature;" Some of the items that are voided from VARA's protection include posters, maps, globes, motion pictures, electronic publications, and applied art. The VARA grants artists two specific rights. The first is the right of attribution. This allows an author to avoid the misattribution of their work and allows their ownership to remain anonymous. The second is the right of integrity does its best to prevent distortion or modification of their work. This right can ease an artist in their worries surrounding negative defamation directly applied to their work and their reputation.  The artist's work cannot be transferable after death, the end only with the life of the author. They can, however, waive their moral rights if done so in writing. Some jurisdictions like Austria differentiate between narrow and wide moral rights. Whilst the former is about integrity of the work, the latter limits usages, which may harm the author's integrity. Some copyright timestamp services allow an author to publish allowed and disallowed usage intentions to prevent a violation of such wider moral rights.