3. Personal property, whether movable or immovable, as opposed to real property. In this sense leaseholds are classed as chattels, because of the special rule by which they are excluded from the domain of real property.
§ 157. Rights in re propria in Immaterial Things.
The subject-matter of a right of property is either a material or an immaterial thing. A material thing is a physical object; an immaterial thing is anything else which may be the subject-matter of a right.[[425]] It is to things of the former class that the law of property almost wholly relates. In the great majority of cases a right of property is a right to the uses of a material object. It is the chief purpose of this department of the law to allot to every man his portion in the material instruments of human well-being—to divide the earth and the fulness of it among the men who live in it. The only immaterial things which are recognised by law as the subject-matter of rights of this description are the various immaterial products of human skill and labour. Speaking generally we may say that in modern law every man owns that which he creates. That which he produces is his, and he has an exclusive right to the use and benefit of it. The immaterial product of a man’s brains may be as valuable as his land or his goods. The law, therefore, gives him a proprietary right in it, and the unauthorised use of it by other persons is a violation of his ownership, no less than theft or trespass is. These immaterial forms of property are of five chief kinds:—[[426]]
1. Patents. The subject-matter of a patent-right is an invention. He whose skill or labour produces the idea of a new process, instrument, or manufacture, has that idea as his own in law. He alone is entitled to use it and to draw from it the profit inherent in it.
2. Literary copyright. The subject-matter of this right is the literary expression of facts or thoughts. He to whose skill or labour this expression is due has in it a proprietary right of exclusive use.
3. Artistic copyright. Artistic design in all its various forms, such as drawing, painting, sculpture, and photography, is the subject-matter of a right of exclusive use analogous to literary copyright. The creations of an artist’s skill or of a photographer’s labour are his exclusive property. The object of this right is not the material thing produced, but the form impressed upon it by the maker. The picture, in the concrete sense of the material paint and canvas, belongs to him who purchases it; but the picture, in the abstract sense of the artistic form made visible by that paint and canvas, belongs to him who made it. The former is material property, the latter is immaterial. The right in each case is one of exclusive use. The right to the material picture is infringed by destroying it or taking it away. The right to the immaterial picture is infringed by making material pictures which embody it.
4. Musical and dramatic copyright. A fourth class of immaterial things consists of musical and dramatic works. The immaterial product of the skill of the musician or the playwright is the subject-matter of a proprietary right of exclusive use which is infringed by any unauthorised performance or representation.
5. Commercial good-will; trade-marks and trade-names. The fifth and last species of immaterial things includes commercial good-will and the special forms of it known as trade-marks and trade-names. He who by his skill and labour establishes a business acquires thereby an interest in the good-will of it, that is to say, in the established disposition of customers to resort to him. To this good-will he has an exclusive right which is violated by any one who seeks to make use of it for his own advantage, as by falsely representing to the public that he is himself carrying on the business in question. Special forms of this right of commercial good-will are rights to trade-names and trade-marks. Every man has an exclusive right to the name under which he carries on business or sells his goods—to this extent at least that no one is at liberty to use that name for the purpose of deceiving the public and so injuring the owner of it. He has a similar right to the exclusive use of the marks which he impresses upon his goods, and by which they are known and identified in the market as his.
§ 158. Leases.
Having now considered the different kinds of rights in re propria which fall within the law of property, we proceed to deal with the various rights in re aliena to which they may be subject. As already stated,[[427]] the chief of these are four in number, namely Leases, Servitudes, Securities, and Trusts. The nature of a trust has been sufficiently examined in another connexion,[[428]] and it is necessary here to consider the other three only.[[429]] And first of leases or tenancies.