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A scholar of intellectual property law quickly learns that complacency, and the privilege of working in a largely static and unchanging body of law, is not a benefit available to those who labor in this endlessly fascinating but fast-paced and always changing field. The 1953 decision of the California Supreme Court in Kurlan v. CBS (hereinafter “Kurlan”), provides yet another example of this principle. Many of the assumptions found in the majority decision have long been abandoned or substantially revised. Justice Carter’s dissent, however, contains the seeds of those revisions, and is prescient in its understanding of the need to: 1) eliminate copyright formalities regarding whether a work is deemed “published” resulting in divestiture of ownership; 2) determine whether characters should be separately subject to copyright protection; and 3) confirm that the judiciary should interpret and limit licenses of works to the media platform identified in the license, rather than affording a multi-platform license to licensees to the detriment of copyright holders.


Chapter 10 in “The Great Dissents of the 'Lone Dissenter': Justice Jesse W. Carter's Twenty Tumultuous Years on the California Supreme Court,” Oppenheimer, David & Allan Brotsky, eds. (Carolina Academic Press, 2010). Posted with permission from Carolina Academic Press. All rights reserved.