Question/Answer memo for January 30, 2008 (including questions from several previous classes):

1. On the celebrity point: suppose that I decided to make a "how-to" golf video, and during this video I tell the viewer that they should adopt a particular putting stance "exactly like the one Tiger Woods uses." Does the Midler case suggest that I couldn't do this without Tiger's consent? If I did it without his consent, would I have to disgorge the profits to him? That seems wrong; it seems like holding a professional out as a worthy aspiration in a "how-to" book would not infringe upon a property right that ought to be protected.

If I'm selling golf videos called "How to Play Golf," in which I'm demonstrating the characteristics of the swing, there's no problem with my appearing on the video swinging the golf club and saying "here are the characteristic of a good swing, like Sam Snead used to have or like Tiger Woods has today. He does this on the take-away, at this point he does this ....", etc. In that case, I'm not trying to make people think that Tiger Woods endorses my golf videos. I'm just making a factual statement --- his swing is one that someone learning the game should try to emulate. He doesn't have a property right in the golf swing. [However, his golf swing does appear to be earning him quite a bit of property.]

On the other hand, if my video actually includes video footage of Tiger himself swinging the club, now I'm using his likeness for commercial purposes, and a viewer could more reasonably think Tiger was endorsing my video. In that case, I think a court would say I would be liable to him if I did that without his consent. Or alternatively, if I titled the video "Swing the Tiger Woods Way," I'm using his name for commercial purposes and would be liable to him if I did so without his consent.

2. How does the law of bailment relate to finding?   A bailment need not necessarily be voluntary. The chimney sweep's boy who found the jewel in Armory was a bailee — as he was in rightful possession of the jewels (he was a finder of lost property, not a thief), even though they belonged to an unidentified true owner.  Thus, the chimney sweep's boy was an "involuntary" bailee, and this would be true for any finder of lost property.  [By contrast, the typical bailment is a voluntary bailment — I take my car to the mechanic to fix it, I take my clothes to the cleaners to be cleaned, I loan my loan mower to my neighbor.]

A bailee has a duty of care with respect to the object of the bailment and a duty of redelivery to the bailor. Thus, the finder of a lost object would have a duty to redeliver the object to the true owner and a duty of care regarding the object's safekeeping.

The lesson of Armory and the other finding cases is that you must appreciate the concept of relativity of title — the idea that multiple parties may claim a right over an object that the law could classify as a "property" right, with some of those parties having relatively better rights than others.  For example, a finder of a lost object establishes a "property" interest with respect to that object.  This right is relatively better than the claims of some third parties (such as someone who steals the object from the finder) and relatively worse than others (such as the true owner or another party who could establish prior possession of the object).  This concept is also true for voluntary bailments as well.  The cleaners to whom I take my clothes (a bailee) has a better possessory right than someone who broke into the cleaners and stole some of the clothes, but a lesser possessory right than I have as the true owner.

3. Why didn't the court in Benjamin v. Lindner Aviation use bailment law in deciding the case?  In other words, why didn't Benjamin simply hold that because State Central Bank "bailed" the plane to Lindner (and its employee, Benjamin), it effectively bailed all of the contents of the plane as well, so that Benjamin/Lindner were obligated to turn over the money to the Bank?

That argument puts the cart before the horse.  State Central Bank never had physical possession of the money before Benjamin — in fact, Bank never knew the money was there.  This makes it more difficult to suggest that the parties created a voluntary bailment of the money simply by virtue of the fact that Bank turned the plane over for maintenance.

There's a case cited on page 143, in note 1, Samples v. Geary. That case holds (correctly) that a bailment does not necessarily arise with respect to undisclosed items contained within the object of the bailment.  In the Samples case, a restaurant guest checked a coat that contained an extremely valuable fur piece hidden inside the coat.  The court concluded that because that fur piece had not been disclosed when the coat was bailed, the bailee never knowingly assumed responsibility for it — presumably, the bailee might have taken extra care if it had known how valuable this was, or perhaps the bailee would simply have refused to take responsibility for such a valuable item.  In the same way, it seems unlikely that we'd automatically characterize Lindner as a bailee of the money just because it was hidden in the plane, because characterizing someone as a bailee of something has legal significance (it imposes duties on them with respect to the object of the bailment).

Instead, the issue is this: is there a good reason to treat the Bank as having been in prior constructive possession of the money, based on Bank's ownership of the plane.  If we treat Benjamin/Lindner as a finder of the money, that would mean that Benjamin/Lindner had a better possessory right in the money than anyone other than the true owner and anyone who could establish "prior possession" of the money — and Benjamin/Linder THEN becomes a bailee of the money when Benjamin/Linder physically takes possession of it.  At that point, though, it is still up to Bank to prove its prior constructive possession of the money — otherwise, Benjamin/Lindner as the "bailee" would have no obligation as bailee to return the money to the Bank.  If the Bank proves its prior constructive possession, then Benjamin/Lindner as "bailee" must turn over possession to the Bank, who has superior possessory rights in the money (and who, it turn, would have an obligation to turn the money over to the true owner, if so requested by the true owner).

In turn, whether there is a good reason to treat the Bank as having been in prior constructive possession of the money, based on Bank's ownership of the plane, depends upon the circumstances and the policies underlying finding disputes.  The court treats Bank as having established prior constructive possession (and treats the property as mislaid) in order to facilitate the money's return to its true owner.  Given the amount of money at stake and the unlikelihood that the money ended up in the wing by accident, it seems at least plausible that the true owner would be searching for it — and thus that the court should be motivated by a desire to reunite the money with its true owner.  [Again, even this isn't conclusive — as suggested in class, the dissenting judge's abandonment argument is a plausible one.]

4. In the Armory case, is it fair to say that the court's decision to give Armory an award was a "lesser of two evils" theory (i.e., Armory shouldn't really get anything because the jewelry wasn't his to begin with, but to not award Armory anything would be an incentive for Delamirie to basically "steal" the jewelry from Armory with no penalty)? I have a hard time accepting this make sense otherwise, because it just seems as though Armory (and other finders) are being rewarded for finding things that aren't theirs.

I'm not sure I would characterize the Armory rule this way, but at the same time, I don't think the characterization is necessarily unfair. It is certainly true that the Armory rule protects possession based on a prior-in-time basis. By protecting prior-in-time possession, society sends a signal that if X is in possession of an object, everyone else should respect X's possession. Failure to protect prior-in-time possession would create incentives for people to act in ways that we think are anti-social (i.e., once Z learns that X doesn't actually own an object, Z has an incentive to steal it if Z knows the law won't protect X). So if the result in Armory is an "evil" (I'm not sure I agree it is), it certainly is the lesser of two evils.

It is true enough that Armory gets "control" over something that doesn't really belong to him. But that's not really a problem ---for two reasons. First, keep in mind that the court in Armory really only had two choices: 1) Armory wins, or 2) Delamirie wins. There is no "Option 3." We don't know who the true owner was. The true owner was not a party. The court had to resolve the dispute between Armory and Delamirie --- it couldn't just say "no one wins." Courts are in the business of deciding disputes, not serving as lost and found agencies. So because the true owner never showed up and joined in the dispute, the court had to decide which one of the parties had the relatively better property right. Second, it's not a problem because Armory's rights were still subject to the true owner's rights being superior. If the true owner had showed up, or showed up later, the true owner could have recovered the jewels (or their value) from Armory.

5. The note about finding statutes and the reference in Benjamin to a "finder's fee" made me wonder about Popov v. Hayashi. Could the court have awarded the ball to Popov, but say he "lost" it when mugged by the crowd, and make Popov pay Hayashi a reward or finding fee for "finding" it?

If California had a statute legislating a finder's fee, or authorizing the court to establish one, maybe the court could or would have done that. However, there's no common law authority for that proposition. If the ball belonged to Popov, his rights as true owner would trump those of Hayashi as a subsequent possessor. Popov could recover the ball, and he would not be legally obligated to pay a bounty to Hayashi (nothing would prevent him from doing so voluntarily). A few state statutes authorize a "finder's fee," but there is no common law authority for such a position, and I doubt a court would be willing to impose one without statutory authority.

6. Isn't the dissenting judge in Benjamin correct to suggest that the 1-year finding statute would basically require you to characterize all objects as abandoned after 1 year?

Two problems here. First, it's the dissenting opinion, so it doesn't have the force of law. Second, even if the dissenting judge is correct, that presumption of abandonment would only apply in cases where the finder had complied with the finding statute so as to trigger the 1-year reclaiming period. If the finder didn't report the finding, or didn't run the ads that complied with the statute, the clock would never start running, and the true owner would still be able to reclaim even if more than a year had passed since the finding.

I suppose the finder could try to argue in that case that the object should still be considered abandoned because more than 1 year has passed without the object being reclaimed, such that it is unlikely that the true owner is still trying to reclaim it. But this requires us to make a judgment about the state of mind of someone we don't know. The inference is plausible, but so are other inferences (e.g., the true owner thinks it was lost somewhere else and is actively looking somewhere else; the true owner is in prison and can't actively look anywhere; the true owner is dead). The dissenting judge's willingness to accept the inference of abandonment was bolstered by the statute (which would appear to legally prevent the real true owner from now reclaiming). Without that statute — if the true owner could still legallly reclaim the money — it becomes more problematic for me as a judge to feel comfortable characterizing the money as abandoned. Would a reasonable person in the position of the real true owner really be likely to abandon nearly $20,000? I'd be hard-pressed as a judge to say that; if I'd lost track of $20,000, I surely wouldn't be intending to abandon it, even more than a year later.

I think it is important to keep in mind that the primary purpose of a finding statute is to resolve the "finder vs. true owner" dispute — in other words, to resolve whether or not the true owner of a lost object can reclaim it or is estopped from doing so. The finding statute doesn't really help us resolve whether we should characterize an object as "lost" or "mislaid." As the dissenting judge suggests, it could be relevant in terms of characterizing whether something should be deemed "abandoned" based on the fact that the true owner could no longer reclaim it. But a finding statute doesn't really help us address the "is it lost or mislaid" decision.