I concur in the judgment and in what is hereinafter specified as being what I understand Justice Edmonds’ opinion actually holds; I further agree that “A *836careful comparison of Burtis’ story and the defendants’ motion picture shows no similarity ... as to form and manner of expression.” I do not agree with what is said in Justice Edmonds’ opinion in attempting to distinguish this case from Golding v. R.K.O. Pictures, Inc. (1950), 35 Cal.2d 690, 710-712 [221 P.2d 95].
This case, it appears to me, is controlled by exactly the same i principles which should have controlled in the Golding case, i The plot (or, as Justice Edmonds denominated it, the “basic J dramatic core”) used by the plaintiff and the defendants in ¡ this case, is, as was true in the Golding case, in the public ! domain. It is to the credit of both the intelligence and the 1 integrity of Mr. Burtis, the plaintiff here, that he testified ;! “All that a professional writer can do is take elements of ■ recognizable characters, recognizable to anybody, and cornil bine them in a new form, like a new chemical combination j makes a new material, until boy meets girl becomes an original ! story because of the way that all the common elements are I combined. ’ ’ There being nothing new or novel in the plot it is not, as such, protectible. Hence, unless the author’s com-i bination, embellishment and treatment of the common materials of the public domain do in truth create what Burtis j likens to “a new material” made by “a new chemical com-i bination” of the old elements, there is, at least generally j! speaking, no protectible product of the mind.
* The basic holding here, essential to the judgment, appears to me to be irreconcilably inconsistent with the Golding holding. The suggestion is made that the Golding decision was based on the “former wording of the statute” (Civ. Code, § 980) and that because of the subsequent amendment of the statute this case can be distinguished from and is not controlled by the Golding case. Justice Edmonds here says “Thus, under the earlier form of the statute, a ‘theme’ or ‘idea’ was protectible, although at common law and under the 1947 amendment to the statute protection is extended only to ‘the representation or expression’ of a composition.” But in the Golding case the majority said (pp. 694-695 of 35 Cal. 2d) : “The rights asserted in this case are not based upon statutory copyright but stem from the so-called common-law copyright . . . It is . . . only the product of the writer’s creative mind which is protectible . . . The question as to whether the claimed original or novel idea has been reduced to concrete form is an issue of law . . . Certainly, if the only product of the writer’s creative mind is not something which *837the law recognizes as protectible, that is, an idea not reduced to concrete form . . . , no right of action for infringement of literary property will lie. ...”
For the reasons indicated above and more fully developed in my dissent in the Golding Case (pp. 710 et seq. of 35 Cal.2d) and concurring opinion in Stanley v. Columbia Broadcasting System, Inc. (1950), 35 Cal.2d 653, 668 et seq. [221 P.2d 73, 23 A.L.R.2d 216], I would hold that a plot as such, being in the public domain and neither new nor novel, is not protectible and that only the original and (except in special-circumstances not here pertinent) novel treatment of a plot,1 which treatment (as so aptly described in the above set forth]! quotation from Mr. Burtis’ testimony) is the creation and S product of the author, can be protectible. This holding, itjj seems to me, appears upon analysis to be the holding now1 actually made by this court; it is inherent in its judgment. I would clearly declare it to be such and expressly overrule the Golding case.
I am, of course, not here dealing with, or suggesting that there cannot he, an original and novel idea, or treatment of an idea, which does not involve a plot.