(dissenting). The complaint should be reinstated, summary judgment denied and Zodiac’s motion for leave to replead granted.
The amendatory agreement of 1968 upon which Zodiac bottoms its claim was drafted by ABC. Therefore, ABC cannot take refuge in ambiguity.
The majority opinion, innocent of the implications of the determination, brushes aside the need for a conclusive new pleading setting forth the issues, and denies even the right to replead.
Just as silent films may have value in an era of sound, and black and white films in an era of color, so, too, tapes of old television programs may have distinct value. (Cf. Rights in New Media, 19 Law and Contemporary Problems [1954], p 172.)
*342These tapes or physical property as distinct from the literary property therein, have a function of their own. The rights in a film classic can be of no value if the physical negative or a print thereof is not available. The physical property may have a distinct life of its own albeit it may not be used without at some time having the underlying or inherent literary rights. (See Rohauer v Killiam Shows, 551 F2d 484, 494, cert den 431 US 949.)
The initial agreement between the parties conceded as the property of ABC: “8. The programs, all elements thereof and all material incorporated in the programs and/or on which the programs are based and all recordings of the programs are and will be, as between you and us, in perpetuity worldwide our sole and exclusive property.”
The amendatory agreement quitclaimed the title and the format and the programs therein and specifically provided in subdivision (b) of section 1 thereof: “Paragraph 8 of the Main Agreement and any other paragraphs of the Main Agreement and of any of the amendments thereto which provide that we own the said title and/or format and which indemnify you and others with respect to the use thereof are hereby accordingly amended by deleting all provisions asserting our said ownership” (emphasis added).
Considering the fact that the rights retained, if any, may not be used to invade the rights transferred (Manners v Morosco, 252 US 317), and there is an implied covenant with respect to the quitclaim, of good faith and fair dealing (Kirk La Shelle Co. v Armstrong Co., 263 NY 79, Underhill v Schenck, 238 NY 7), it cannot be said as a matter of law that the ownership of the physical recordings was not transferred to Zodiac.