A few years ago I was invited to join colleagues on the Golden Gate University School of Law faculty in writing a chapter of a jointly written book project. The subject of the book was the collection of dissenting opinions published by one of our most famous alumni, California Supreme Court Justice Jesse W. Carter. Justice Carter served twenty years as a member of the California Supreme Court, during which time he became known as the “Lone Dissenter” for the frequency and vehemence of his dissenting opinions.
The case I selected to write about was Kurlan v. CBS, 40 Cal. 2d 799 (1953). This case raised a variety of issues in entertainment law, including whether characters created for a book, and later used in a radio and television program, are entitled to separate protection under the law. They weren’t at the time, and the majority opinion does not extend the law to offer that protection. Judge Carter strongly argues that they should be entitled to this protection, and his was a prescient view, as characters which are clearly and strongly defined are now afforded such protection under federal copyright law.
Perhaps one of the oddest elements of the Kurlan case is the fact that it was litigated in state court, despite the predominance of copyright law related issues. This is significant since copyright law is exclusively federal law. My research led me to some explanations as to why the case was not brought in federal court, but rather than explain that here, I’ll just refer you to the book!
This fascinating review of Justice Carter’s dissents can be found in The Great Dissents of the “Lone Dissenter”, (2010) published by Carolina Academic Press, ISBN No. 978-1-59460-810-0. Copies are available on Amazon and other online book sites.