I disagree with the interpretation placed by the majority on the 1947 amendment to section 980 of the Civil Code. That section as it formerly read provided that “The author of any product of the mind, whether it is an invention, or a composition in letters or art, or a design, with or without delineation, or other graphical representation, has an exclusive ownership therein, and in the representation or expression thereof, which continues so long as the product and the representations or expressions thereof made by him remain in his possession.” As amended, it read (at the time of this action) that “The author or proprietor of any composition in letters or art has an exclusive ownership in the representation or expression thereof as against all persons except one who originally and independently creates the same or a similar composition.” The majority holds that the 1947 amendment has “eliminated the protection formerly given to ‘any product of the mind.’ The statute as it now exists, and as it read at the time this cause of action arose, provides protection only ‘in the representation or expression’ of a composition. The Legislature has abrogated the rule of protectibility of an idea and California now accepts the traditional theory of protectible property under common law copyright.” It is held that the basic dramatic core is no longer protected but only the “representation or expression”—the development of both characterizations and adventures. This is the method by which the majority has determined that the question of originality shall be decided. It is admitted that a “portion of the ‘basic dramatic core’ might be found similar” in comparing Weitzenkorn’s composition and the motion picture in the instant case, but because of changes in the characterizations, descriptions and events,—what the majority calls the protectible interests involved—the demurrer to the third count (plagiarism) of the complaint was held properly sustained. It has been stated that the policy of the law is to promote the progress of literature by protecting the author against the plagiarist (38 C.L.R. 332), but by minor changes in the sequence of events and the characterizations, the plagiarist may escape liability under this holding that only the representation or expression of am, idea or plot is protected. This unnecessarily harsh result will not have the effect of promot*797ing the progress of literature. Authors, anxious to find a market for their work, are not in an advantageous bargaining position to insist that the one to whom the composition is submitted sign a contract agreeing to compensate them if the work is used. It can be admitted that the characters Tarzan, Jane and Gheta are well-known, old and in the public domain as is the myth of the Fountain of Youth. A combination of those characters and the myth of the Fountain of Youth—- or the basic, central plot—could very easily be considered original, but this court denies protection now to the plot, or central idea, and says that only the expression of the characterizations, events and descriptions is to be protected under the 1947 amendment to section 980 of the Civil Code. The movie industry is constantly looking for “ideas” and “plots” which it develops as it sees fit. That plots are protective, see Shipman v. R.K.O. Radio Pictures, Inc., 100 F.2d 533, 536-537; Dam v. Kirke LaShelle, 175 F. 902, 907, 908 [99 C.C.A. 392, 20 Ann.Cas. 1173, 41 L.R.A.N.S. 1002]; Nichols v. Universal Pictures Corp., 45 F.2d 119, 121. Even when a book is purchased by the industry and made into a motion picture, the motion picture may differ so radically from the book because of the change in events, characterizations, locale, and conclusion that one who has read the book has difficulty in recognizing any similarity between it and the picture. To extend protection only to the expression and representation is to give no protection at all.
It is admitted in the majority opinion that an idea may be protected by an express contract, but any recovery for breach of that contract depends upon similarity between the two productions. In its statement with respect to the first count, based upon express contract, this court practically directs the trial court to direct the jury to find that Lesser did not promise to pay for Weitzenkorn’s production: “It is conceivable, even though improbable, that Weitzenkorn might be able to introduce evidence tending to show that the parties entered into an express contract whereby Lesser and Lesser Productions agreed to pay for her production regardless of its protectibility (which is unimportant so far as this court is concerned) and no matter how slight or commonplace the portion which they used. Such evidence, together with comparison of the productions, would present questions of fact for the jury as to the terms of the contract, access, similarity, and copying. Under these circumstances, the facts pleaded *798in the first count are sufficient to state a cause of action and the demurrer to it was improperly sustained.” (Emphasis added.)
No concise test has ever been laid down for determining the question of originality. It has been said that one requisite is that the work be original in the sense of being the creative product of the author’s own effort. There is no requirement that the work be original in the sense of being novel, that is, the first of its kind in existence (Amdur, Copyright Law and Practice, 3, p. 69; Gerlach-Barklow Co. v. Morris & Bendien, 23 F.2d 159). It has also been said that a composition, or work, to be a subject of copyright protection, must be useful, and its production must have involved independent effort and some judgment, selection, or experience on the part of the author; that many works which are original in the sense of the law would be disdained by the critic, because the latter’s standard of originality is based upon a different theory and serves a different purpose; that to entitle a person to a copyright it is not necessary that he be the sole creator of the work for which the protection is claimed—that one who makes material changes, additions, improvements, notes, comments, or a substantially new adaptation or arrangement of an old piece of music, or an abridgment, translation, dramatization, digest, index or concordance of a work is entitled to a copyright for his results (Ball, The Law of Copyright and Literary Property, 111, pp. 237-241). “Although original plots (dramatic situations) were exhausted centuries ago, original and novel ideas for handling old plots seem inexhaustible, and as long as sufficient originality in treatment or handling of the old plot appears the law endeavors to afford protection” (concurring opinion of Mr. Justice Schauer, Stanley v. Columbia Broadcasting System, 35 Cal.2d 653, 668-669 [221 P.2d 73, 23 A.L.R.2d 216]). Where, as here, plaintiff has combined old elements in a new way, the question of originality should have been submitted to the jury. I do not agree that the 1947 amendment to section 980 of the Civil Code has circumscribed the protection of the law to merely the form and manner of expression of a literary composition.
Insofar as the issue of similarity is concerned, I am of the opinion that the test is still that impression received by the average reasonable man upon a comparative reading of the two productions and that if reasonable minds could differ as to whether or not the two were similar, the question is one of fact and should be submitted to the jury.
*799Because it is my belief that the majority opinion interprets the 1947 amendment to section 980 of the Civil Code so narrowly as to provide no protection whatever to the products of an author’s creative mind and because there is inherent therein too strict a test for determining the issue of similarity between the two productions, I would reverse the entire judgment with directions to the trial court to overrule the demurrers and permit the defendants to answer if they be so advised.
Appellant’s petition for a rehearing was denied May 28, 1953. Carter, J., was of the opinion that the petition should be granted.