(dissenting).
I dissent.
My colleagues first substitute their conclusion for that of the trial judge as to which witnesses are or are not worthy of belief, and secondly, it appears to me they bolster their conclusion by uncritically parroting the appellant’s position that there exist twenty-two alleged similarities from which, my colleagues say, this court must infer both access and copying.
I have believed a trial judge who personally has had the opportunity to observe the conduct and demeanor of the various witnesses was in a better position than an appellate judge to determine who was telling the truth. This Circuit has gone a long way to preserve the integrity of this principle. Ly Shew v. Dulles, 9 Cir., 1954, 219 F.2d 413, 416, and cases cited in note 12; Mar Gong v. Brownell, 9 Cir., 1954, 209 F.2d 448, 449; N.L.R.B. v. Howell Chevrolet Co., 9 Cir., 1953, 204 F.2d 79, 86, affirmed 346 U.S. 482, 74 S. Ct. 214, 98 L.Ed. 215.
The majority say that “a comparison of Bradbury’s story with the play shows in many important and unimportant details as well that Aurthur actually read the story or had knowledge thereof before and during the writing and production of the teleplay.” If this were recited in an affidavit, I suspect my colleagues would say it was purely conclusionary — - that no facts had been stated. And in the majority opinion none of these “important and unimportant details” are specifically pointed out.
The majority state that: “An ordinary person, after reading plaintiff’s works and viewing the teleplay, might well believe that Aurthur had copied plaintiff’s works.” This ordinary judge did not, nor did the able trial judge below. The latter is no stranger to this segment of the law, holding an acknowledged national reputation as an authority on plagiarism.
Having come to a factual conclusion directly contrary to the trier of facts below, and without any considered analysis of those facts, the majority here cite as authority five cases: Dam v. Kirk La Shelle Co., 2 Cir., 1910, 175 F. 902, 907, 41 L.R.A..N.S., 1002; Simonton v. Gordon, D.C.S.D.N.Y.1925, 12 F.2d 116; Harold Lloyd Corporation v. Witwer, 9 Cir., 1933, 65 F.2d 1, 18, 23; Sheldon v. Metro Goldwyn Pictures Corp., 2 Cir., 1936, 81 F.2d 49, 54; Universal Pictures Co. v. Harold Lloyd Corp., 9 Cir., 1947, 162 F.2d 354, 361, 363. These cases all represent good law, but do not require a reversal here, on the facts as I see them.
In Dam v. Kirk La Shelle Co., supra, the court was not (as the majority opinion correctly states) “dealing with a situation such as we have here.” In Dam, *487the court thought it “unnecessary to review the evidence in detail with respect to the question of infringement. The Circuit Court has carefully compared the story with the play, and we agree with its [the district court’s] conclusion that the play is a dramatization of the story. * * * [T]he theme of the story is the theme of the play * * * ” [175 F. 907], Thus, in Dam the appellate court was agreeing with the trial court there had been infringement.
In Simonton v. Gordon, supra, a district court case, an able judge (Judge Knox) goes into an extremely detailed factual analysis of “White Cargo,” alleged to have been taken from “Hell's Playground.” He quotes incidents, scenes, and episodes, even similarities of language, and “paraphrases.” After the careful seven page analysis (out of the eight pages of the opinion), Judge Knox opines: “The foregoing list of similarities might be extended indefinitely.” [12 F.2d 123], This case to me constitutes no authority for the action taken by the majority herein.
Similarly, the forty-eight page opinion in Harold Lloyd Corporation v. Wit-wer, supra, carefully analyzes and compares the similarities in theme, incident, scene and episodes. It affirms the judgment of infringement ordered below.
In Sheldon v. Metro Goldwyn Pictures Corp., supra, Judge Learned Hand did reverse a judgment on nonplagiarism below, but only after spending six of the six and one-half pages in the opinion in a careful listing of the many similarities between “Letty Lynton,” “Dishonored Lady,” and the story, in the public domain, of Madeleine Smith.
In Universal Pictures Co. v. Harold Lloyd Corp., supra, again, the court below awarded damages for plagiarism, and this court noting the “advantages” that trial court had in having the witnesses before it, affirmed.
Thus, in but one of the five cases cited in the majority opinion (Sheldon v. Metro Goldwyn Pictures Corp., supra) has an appellate court reversed the factual determination made below. And that, by an analysis that is comparable, not to the majority decision herein, but to the detailed analysis made in the trial court.
But desiring to avoid the error I believe my colleagues make, I desire to point out some of the reasons why I cannot “buy” the appellant’s alleged similarities.
It seems to me that the fundamental thesis of protest against a heavily organized society, and its thought-controlling government, is as old as literature. Ideas are not subject to copyright, but manners of expression are. I have examined the twenty-two “similarities” urged by appellant. I do not find similarity of expression, as distinguished from similarity in basic ideas, in any more than two of the suggested twenty-two similarities. For example, in item 1, the bookburners are called “firemen” in appellant’s work; “bookmen” in appellee’s production. This is a difference in detail and in manner of expression, not a similarity in expression. The destruction of books, the destruction of learning, the destruction of written knowledge, is but a reference to history, whether it be to the Middle Ages or to Hitler’s Germany. In item 3, meeting the “different” or “unorthodox” girl is not a similarity in incident or sequence of events, or in development or interplay in the characters. The basic idea of an unorthodox female character is again as old as literature, and having that girl motivate or influence leading characters in the development of the plot is no more than the love interest essential to most all, if not all, plays or motion pictures. Further, she is an evanescent and immaterial character in the book, but not in the television play. With respect to item 4, stealing behind someone’s back is not new. Stealing has to be behind the back of somebody, unless the culprit wishes to invite capture. Stealing a book is certainly not new in any story dealing with books, and the influence of the girl on the leading character to read the illegal book did not constitute a difference in events and sequence. Many other incidents seem to *488me to be merely fortuitous circumstance. I admit that item 2, where an alarm opens the scene, well might be considered a “similar incident,” but from there on the incidents change completely; the characters are different; the results are different — one being a murder and the other suicide. One might say that in item 7, the inability to communicate with the wife in the one case, and with the roommate in the other, having developed from the interest of each in wall-to-wall television, is a similar incident. But from my limited reading, this has been commented upon before and is part of “1984”, among other works. Item 11 (that among books shown is the Holy Bible), seems to me not unusual. It would be difficult to dramatically discuss the burning of all books without making a reference to the Great Book. Item 13 shows differences, not similarities. In item 12, as I remember the facts, there is still another difference. The fireman reads to his wife who was an uninspired and unsympathetic listener; the book-man reads to the girl who is an inspired and sympathetic listener. The setting of the leading man reading to a companion is the same, and that is a similarity, but there it ends. The sequence is different. I could go on — for example, similarities numbers 21 and 22, cited by the majority, mean nothing to me.
In summary, I believe the majority opinion adopts the appellant’s argument hook, line and sinker, in the twenty-two similarities urged by appellant and in the long summary of characters, sequence and incidents. I do not feel that the labored “dissection” made by appellant’s counsel (with such catch-phrases as “inverse fireman,” etc.) can supersede a viewer’s general over-all impression. As I understand it, it is the over-all impression to the viewer that controls, as we said the test is in this circuit in Harold Lloyd Corporation v. Witwer, supra, 65 F.2d at page 28. I think that the emphasis in Bradbury’s work was on science and fiction (and specifically upon a mechanical hound with a hypodermic needle in its snout). In “A Sound of Different Drummers” the emphasis was upon the individuals’ moral and intellectual revolt against a subjugated society. The opinion below details the fundamental differences in the two works. 174 F.Supp. 733 (1959).
To repeat, I do not think we grant any trial judge the full measure of his authority as a trier of fact on the issue of similarities when we rule as a matter of law he was in error, where there exists no real similarity of scenes and episodes, no startling examples of peculiarly phrased sentences, no paraphrase of text. To say that the trial judge erred when weighing what he found, against the expressed denial of Aurthur (that he had read and knew of the contents of appellant’s work), seems to me to be an unjustified derogation of the trial court’s rights. I find no such great number of similarities to indicate to me that it would be impossible for the limited number of admitted similarities to have been coincidental.
Therefore, while not necessarily adopting all of Judge Yankwich’s opinion, I would be content to rely upon it generally, and certainly would affirm the judgment below.