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Pierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264 (N.Y. 1805).

Facts
Post (P) was in pursuit of a fox while hunting with his hounds. Pierson (D) killed and captured the fox
despite knowing that Post had been pursuing it. Neither party owned the land on which they were hunting.
Post brought suit in trespass on the case, contending that he acquired title to the fox when he began to
hunt it. Pierson asserted that Post did not have control over the fox and therefore had not acquired any
property interest in it. The trial court entered judgment for Post and the plaintiff appealed.

Issue

Does the mere fact that a person is pursuing a wild animal grant that person a right to the animal?

Holding and Rule

No. The mere fact that a person is pursuing a wild animal does not grant that person a right to the
animal.

In order to obtain title to a ferae naturae (wild animal) a person must take it. The first to kill and capture
is the superior rule of law. Had Post mortally wounded the animal, it would have been sufficient to show
possession since this would have deprived the animal of its natural liberty. However, the plaintiff was only
able to show pursuit and therefore acquired no property interest in the animal.

Disposition
Reversed.

Dissent
The death of a fox is a matter of public interest. As a matter of public policy our decision should offer the
greatest possible encouragement to the destruction of this animal. Because it was nearly certain that Post
would have captured the fox the judgment should be affirmed.

Notes
The dissent sought to reward the pursuer for his effort. The majority rule however is very easy to
administer.

Popov v. Hayashi (WL 31833731 Ca. Sup. Ct. 2002) was a California Superior Court case
involving scope of ownership between parties and conversion regarding a baseball acquired at
a Major League Baseball game. The question present in this case is who has ownership of an item
when one acquired it legally, but lost it due to the criminal act of another third party, allowing the
other person to, by all standard acquire the item legally.[1] [2] [3] [4]
Background
At a Major League baseball game, Barry Bonds was about to hit a record-setting homerun and thus
the baseball he hit was highly sought after and very valuable. When he hit it, it flew into the stands
and plaintiff Alex Popov was there to catch it. The ball entered his glove but he was immediately
attacked by a large group of individuals, causing him to drop the ball and fall to the ground
underneath a pile of persons.[3] [1] [4] [2]
At that same time, defendant Patrick Hayashi was also knocked over by the same group of
wrongdoers. While on the ground the ball rolled towards him and he picked it up claiming it as his
own. He did not wrong Popov in any way and had acquired the ball legally. Popov believed the ball
was rightfully his and, when Hayashi refused, took the case to court. The whole event was
videotaped allowing all parties to view it.

Issue

If an actor undertakes significant but incomplete steps to achieve possession of abandoned


personal property and the effort is interrupted by the unlawful acts of others, does the actor have a
legal pre-possessory interest in the property?

Decision
The court eventually concluded that both parties had rights to the ball and neither could be deprived
of it lawfully, and the best solution was an equitable division. The two of them would sell the ball and
split the proceeds evenly.[3] [1] [4] [2]
For this decision the court set a new precedent of qualified pre-possessory interest allowing for both
Popov to claim his property had been converted and it was still his, while also allowing Hayashi legal
rights over the ball.

White v. Samsung Electronics America, Inc

FACTS
Plaintiff, Vanna White, is a popular game hostess of Wheel of Fortune and has gained popularity by marketing
her image to various advertisers. White brings suit against Samsung for an advertisement created by
defendants for Samsung VCRs. The ad depicted a robot, dressed in a wig, gown, and jewelry that resembled
Whites hair and dress. The robot posed next to a game board that closely resembled the Wheel ofFORTUNE
GAME show set, in a stance that imitates Plaintiffs signature pose on the game show. Samsung has
acknowledged that the ad is known as the Vanna White ad. White claims infringement of several IP rights,
claiming she did not consent to the ads and was not paid for Defendants portrayal.

Whether the action of defendants violated the plaintiffs right of publicity


The court says that the district court erred in granting summary judgment to Samsung on Whites common law
right of publicity claim. The court refers to Eastwood v. Superior Ct, which laid out 4 elements that may be
pleaded for the common law right of publicity claim: (1) defendants use of plaintiffs identity; (2) appropriation of
plaintiffs name or likeness to defendants advantage, commercially or otherwise; (3) lack of consent; and (4)
resulting injury.
The district court granted summary judgment to Samsung under the belief that White would not be able to
satisfy the second element, regarding likeness. The 9th Cir. states that the district court erred in granting
summary judgment to Samsung because although Samsung avoided the most obvious means of appropriation
of likeness, its actions came close enough and when viewed together, they leave little doubt about the
celebrity the ad is meant to depict. Court says that if the celebritys image is commercially exploited, there is
an invasion to the right of publicity, regardless of whether name or likeness is used. Deception is key is
determining right of publicity and in this case, it is possible that jury could have found that Samsung
appropriated Whites identity through its use of the robot in a blond wig, long dress, and noticeable jewelry.

Dissent. (J. Kozinski) Overprotecting intellectual property is as harmful as under


protecting it. Creativity is impossible without a rich public domain. Nothing today, likely
nothing since we tamed fire, grows by accretion, each new creator building on the works
of those who came before. Overprotection stifles the very creative forces its supposed
to nurture.
J. Alarcon disagrees that White has right of publicity of Lanham Act. He says there was
no appropriation of a name of likeness. If anything, the ad appropriated a role that White
plays on a television show, not her actual identity. The representation of those attributes
does not constitute a representation of White. He argues that the robots depiction
would not lead a reasonable person to view the robot as White. Judge points out that in
CA, many women are blond, attractive, and graceful. Likewise, these are common
attributes among game show hosts, models, singers, etc. Thus, they are not unique to
Whites identity.

Additionally, J. Alarcon rejects the majoritys decision to deny the parody defense,
stating that those who have successfully parody defense likely made the parody with
the purpose of selling their products.
J. Alarcon says the problem with the majoritys decision is that it seems to allow any
famous person or entity to bring suit based on any commercial advertisement that
depicts a character or role performed by the plaintiff.

Discussion. In this case, the Court abandoned the strict common law rules of
appropriation. The viewer of the ad could clearly see that it was an attempt to convey
Plaintiff on the set of Wheel of Fortune. Defendant hoped to profit from Plaintiffs fame
without paying her for it. Because Plaintiff did not consent to such appropriation,
Defendant is liable.

Moore v. Regents of the University of California, 51 Cal. 3d 120, 271 Cal. Rptr. 146, 793 P.2d 479, cert.
denied 499 U.S. 936 (1991).

Facts
Moore (P) was treated for hairy cell leukemia by Golde (D) at UCLA Medical Center. Test results revealed
that Moores cells would be useful for genetic research and Golde removed blood, bone marrow, Moores
spleen, and other tissues. Golde did not inform Moore of his plans to use the cells for research.
After Moore underwent surgery Golde falsely told him that he needed follow up treatment and further tests
which must be conducted at the UCLA Medical Center. Golde took blood and tissue samples from Moore
on several occasions over a seven year period and retained Moores spleen for research without Moores
knowledge or consent.
Golde patented a cell line using Moores cells. The defendants received substantial royalties from
licensing the technology including cash andSTOCK OPTIONS . Moore learned of defendants activities
and sued in state court on thirteen counts including a claim for conversion, claiming that his blood and
tissues and the cell line developed from them were his tangible personal property. The trial court
sustained the defendants demurrer on the conversion claim and dismissed the case on the grounds that
all of the remaining claims were subordinate to the conversion claim. On appeal, the Court of Appeal
reversed, holding that informed consent was inadequate and concluding that there were no grounds
establishing that Moore had abandoned or consented to the use of his tissue for research unrelated to his
treatment. Golde and the Regents of the University of California appealed.

Issues
1.

Does a claim for conversion lie for the use of a plaintiffs bodily tissue in medical research without
his knowledge or consent?

2.

Under the duty to obtain informed consent, must a doctor disclose his intent in using a patient for
research and economic gain?

Holding and Rule (Panelli)


1.

No. A claim for conversion does not lie for the use of a plaintiffs bodily tissue in medical research
without his knowledge or consent.

2.

Yes. Under the duty to obtain informed consent, a doctor must disclose his intent in using a
patient for research and economic gain.

Rule for Conversion


To establish conversion, plaintiff must establish an actual interference with his ownership or right of
possession. Where plaintiff neither has title to the property alleged to have been converted, nor
possession thereof, he cannot maintain an action for conversion.
The court held that since the plaintiff did not expect to retain possession of his cells, to sue for their
conversion he must have retained an ownership interest in them. There are several reasons to doubt that
he retained such interest. First, there is no precedent in support of plaintiffs claim. Second, California

statutes drastically limit any continuing interest of a patient in excised cells by requiring that they be
destroyed after use. Third, the subject matter of the patent (i.e. the patented cell line and the technology
and products derived from it) cannot be Moores property.
Moores allegations state a cause of action for invading a legally protected interest of his patient. A cause
of action can lie under the informed consent doctrine as a breach of the fiduciary duty to disclose material
facts, or the lack of informed consent in obtaining consent to conduct medical procedures. A reasonable
patient would want to know that his physicians professional judgment might be impaired by an
independent economic interest.

Public Policy
The court stated that it must balance the competing interests in determining whether conversion liability
should be extended. Extension of conversion liability would produce great harm to future medical
research. The court held that this was an issue better left to the legislative branch.

Disposition
The complaint states a cause of action for breach of the physicians disclosure obligations, but not for
conversion

Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997).


Case Summary
Facts: Steenberg (D) sold a mobile home to Jacques (P) neighbor. Steenberg asked Jacque for
permission to move the home across Ps land several times and P refused each time. D ignored Ps
command and hauled the home across Ps land after first plowing a path through the snow. P called the
Sheriff and D was given a citation for $30. P sued D for trespass. The jury awarded P $1 in nominal
damages and $100,000 in punitive damages. The Court set aside the award for punitive damages on the
grounds that Wisconsin law did not allow a punitive damage award unless the jury also awarded
compensatory damages and P appealed.
Issue: Can a ruling of nominal damages support an award for punitive damages in an intentional trespass
action?
Holding and Rule: Yes. In certain instances, the actual harm is not the damage done to the land, which
may be minimal, but in the loss of the individuals right to exclude others from his or her property. A private
landowner has the right to exclude other from his land. This right however has no practical meaning if the
State will not enforce it. Punitive damages may be used because the $30 fine imposed and the $1
nominal damages were not sufficient to deter D and to vindicate societys interest in protection of property
rights. The court held that the Barnard rationale did not support a refusal to allow punitive damages when
the tort involved is intentional trespass and therefore created this exception.

Eyerman v. Mercantile Trust Co.


Facts
Louise Woodruff Johnstons will directed the executor to raze Johnstons house and sell the land it was on
with the proceeds going to her beneficiaries. The house was part of the Kingsbury Place subdivision in St.
Louis, which is a city landmark due to its architectural significance. Neighboring property owners and
trustees of the subdivision where Johnstons house was located (plaintiffs) filed for an injunction to stop
the destruction of the house, claiming among other things that it would diminish their property values and
would be against public policy. At trial it was learned that destroying the houseworth $40,000 as it stood
would provide a net of only $650 to Johnstons beneficiaries. Nevertheless, the trial court denied the
plaintiffs petition for injunction. The plaintiffs appealed.
ANALYSIS:
The neighbors pleaded and proved facts sufficient to show a personal, legally protectible interest. The
purposes of the testatrix's trust would not be defeated by injunction because the proceeds from the
sale of the property would pass into the residual estate and thence to the trust estate as intended, and
only the capricious destructive condition would be enjoined. The value of the property was
significantly higher with the house intact. The neighbors, the community as a whole, and the
beneficiaries of testatrix's estate would be severely injured should the provisions of the will be
followed. No benefits were present to balance against the injury. The court held that to allow the
condition in the will would be in violation of the public policy of Missouri.
CONCLUSION: The court reversed the denial of the injunction and remanded.