dissenting:
Today this court holds that the idea underlying what may well be the most successful situation comedy in television history was, in 1980, so unoriginal and so en*996trenched in the public domain that, as a matter of law, it did not constitute intellectual property protected under New York law. Because I am convinced that the novelty issue in this case presents a factual question subject to further discovery and ultimate scrutiny by a trier of fact, I respectfully dissent.
At least for purposes of this appeal, it is given that Murray presented NBC with an idea for a television series; that, after showing interest in Murray’s initial idea, NBC then asked him to submit a more detailed proposal; and that NBC then actually used his proposal in developing The Cosby Show, but at the same time refused to provide any compensation to Murray. The only question on appeal is whether there is evidence to indicate that Murray’s idea possessed the novelty and originality required under New York law. See Downey v. General Foods Corp., 31 N.Y.2d 56, 334 N.Y.S.2d 874, 286 N.E.2d 257 (1972); Bram v. Dannon Milk Prods., 33 A.D.2d 1010, 307 N.Y.S.2d 571 (1st Dep’t 1970). Specifically, in order to affirm the district court judgment, this court must conclude that there is insufficient evidence to present a triable issue on novelty. Ferber v. Stemdent Corp., 51 N.Y.2d 782, 784, 433 N.Y.S.2d 85, 86, 412 N.E.2d 1311, 1312 (1980); see Ed Graham Productions, Inc. v. National Broadcasting Co., 75 Misc.2d 334, 337, 347 N.Y.S.2d 766, 769 (1973) (idea must be “wholly lacking in novelty”).
I agree with the majority that there is some evidence that Murray’s idea was not novel. But clearly, there is also evidence indicating novelty. Initially, there is the admission by NBC, in its agreement with Carsey-Werner, that the television series is “unique, intellectual property.” Although NBC argues, and the majority agrees, that this clause refers to a “fully-produced television series”, and not Murray’s program idea, such analysis ignores two important facts.
First, the “unique, intellectual property” language is found in the remedies section of the development agreement. This section gives NBC the right to prevent the loss of its “unique, intellectual property” should Carsey-Werner fail to perform. However, if Carsey-Werner does not perform — that is, if it subsequently refuses to develop the television series — the only “unique, intellectual property” to be protected is the program’s underlying idea. In other words, from the outset NBC wanted to make certain that if its relationship with Carsey-Werner faltered, the novel idea it had given Carsey-Werner would be protected from disclosure. And because, for purposes of this appeal, we must assume that NBC got its idea from Murray, the Carsey-Werner development agreement, at a minimum, constitutes admissible evidence that Murray’s idea was unique, thus making the novelty determination a question of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).
That the “unique, intellectual property” mentioned in the agreement refers to Murray’s basic idea underlying the series rather than a fully-produced series, also finds support in the second fact the majority ignores. The definition section of the development agreement specifically defines this “property”, not, as the majority contends, as “titles, set designs, theme music, stories, scripts, and art work” — indeed, these are separately defined in the agreement as the “elements” to be developed by Carsey-Werner — but rather, the development agreement defines the actual “property” exclusively to be the “story, literary property, program idea, and/or program format which form(s) the basis’’ for the television series. This provision provides additional evidence that it was Murray’s underlying idea, not the developed elements of the series as a whole, which NBC desired to protect as unique and novel property.
Nor is the agreement the only piece of evidence indicating an issue of fact as to novelty. In 1985, NBC admitted that Murray had “rights” in his idea, but determined it had no interest in acquiring those rights. At trial, both Cosby and Tartikoff stated that they believed The Cosby Show to be novel and unique. NBC admitted that the reason it normally returned rejected submissions, as it did in Murray's case, *997was that the “material belong[ed] to the submitter.” In short, there is substantial evidence, both within and independent of the Carsey-Werner development agreement, which directly conflicts with the majority’s holding that, as a matter of law, Murray’s idea was not novel.
The fact that the basic idea had been expressed by Cosby some fifteen years before Murray submitted his proposal to NBC does not erase these factual issues. To say, as a matter of law, that an idea is not novel because it already exists in general form, would be to deny governmental protection to any idea previously mentioned anywhere, at anytime, by anyone. I do not believe New York law defines “novelty” so strictly, especially in the area of mass communications, an area long recognized by state courts as “a specialized field having customs and usages of its own” where “a property right exists” in “a combination of ideas evolved into a program.” Cole v. Phillip H. Lord, Inc., 262 A.D. 116, 121, 28 N.Y.S.2d 404, 409 (1st Dep’t 1941). Indeed, in a market the very existence of which depends on the generation and development of ideas, it may be impossible to formulate a concept that has not previously been expressed by someone, somewhere.
Novelty, by its very definition, is highly subjective. As fashion, advertising, and television and radio production can attest, what is novel today may not have been novel 15 years ago, and what is commonplace today may well be novel 15 years hence. In this instance, where Cosby expressed the concept almost a decade and a half before Murray submitted his proposal, where it was Murray’s idea that NBC actually used, where there is no evidence indicating NBC knew anything of the program idea until Murray submitted it, compare Downey v. General Foods Corp., 31 N.Y. 2d 56, 60, 334 N.Y.S.2d 874, 877-78, 286 N.E.2d 257 (1972) (no novelty because defendant had “envisaged” and “utilized” plaintiff’s idea for “years before the plaintiff submitted it”) with Werlin v. Readers Digest Ass’n Inc., 528 F.Supp. 451, 466 (S.D.N.Y.1981) (even though plaintiff’s idea was in public domain, no evidence that defendant knew about or would have discovered the idea except through plaintiff’s proposal; hence, the “idea was novel” as far as defendant was concerned), and where substantial conflicting evidence exists as to the “novelty” of the idea under New York law, there seems to be at least a triable issue.
The majority’s decision prematurely denies Murray a fair opportunity to establish his right to participate in the enormous wealth generated by The Cosby Show. Accordingly, I would reverse the district court judgment and remand the case for further consideration.