J.,Concurring and Dissenting.—Plaintiff seeks recovery for the alleged unauthorized use of his plan for a radio program to consist in the serialized presentation of the adventures of two sisters living in a New York apartment, lie reduced his plan to concrete form by preparing a script and audition of one sample program and submitted it to defendants. He alleges that they made use of his program by producing “My Friend Irma,” and that either under the terms of an express or implied contract, or by virtue of piracy of his literary property, he is entitled to recover damages for such use. The majority opinion holds that he has stated causes of action both for breach of contract and for plagiarism. Since in my opinion plaintiff has not alleged facts, which if proved, would establish infringement of his literary property, I cannot agree with the latter holding.
I Plaintiff’s program may be divided into three elements. 1 There is the raw material consisting of the two principal characters, the basic relaJuJnship between them, and the locale of their adventures. Since this material was taken from the j published works of Ruth McKenney, it could in no event con- ,, stitute protectible literary property under the law of this state. : (Civ. Code, § 983.) Accordingly, it is unnecessary to decide ¡ whether it constituted merely some of the basic' ideas embodied j in the program, or would, had it not been previously published, | constitute a sufficient development and treatment of basic ; ideas to be the subject of copyright protection. (See Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 701 [221 P.2d 95], dissent, and cases and authorities there cited.)
Using McKenney’s material, plaintiff produced his sample program in which he presented one adventure of the two sisters. Although he cannot claim copyright protection under the law of this state for McKenney’s material or for the ideas he may have added to it, he is entitled to protection for any original treatment and development he has given to such 1 maienZPuSRURME^T^agreA'TOthlTIie holding of the court, however, that insofar as the dramatic content of the sample 1 program is concerned, there is no similarity between plaintiff’s j original contributions and defendants’ program. Such similar- ' ity as does exist in this respect arises only from the common *813use of the basic dramatic situation found in the MeKenney works, and accordingly, will not support a finding of piracy. (Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 695-696 [221 P.2d 95].)
The third element of plaintiff’s program is its basic plan as distinct from the specific episode or adventure presented'asTa sample or illustration thereof. The plan or format consists of a combination of the following ideas: the use of the Mc-Kenney material as the basis for a serialized radio program ; the use of first person narration by the intelligent sister to set the stage and bridge the gaps between the scenes in each program; and the use of the principal characters to carry over listener interest from week to week. It may be assumed that this combination of ideas was original with plaintiff. Moreover, although there is nothing new or novel about any one of these ideas, it may be assumed that they had not been combined in the same manner in any earlier radio'program. It does not follow, however, that this combination of ideas constitutes protectible intellectual property. The basic program plan adopted as the foundation for a radio serial is analogous to the basic dramatic core or plot of a play or movie. It consists only of the author’s general ideas as distinct from his original treatment or development of them. Such general ideas are free and cannot constitute property. (See Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 701 [221 P.2d 95], dissent; Stanley v. Columbia Broadcasting System, Inc., 35 Cal.2d 653, 672 [221 P.2d 73, 23 A.L.R.2d 216], dissent.)
In Weitzenkorn v. Lesser, ante, p. 778 [256 P.2d 947], the court holds that since the 1947 amendment to Civil Code, section 980, ideas, as distinct from the original form and manner of their expression, 'do not constitute literary property in this state. It justifies the protection against plagiarism that was given to the basic dramatic core of plaintiffs’ play in Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690 [221 P.2d 95], and to the radio program idea in Stanley v. Columbia Broadcasting System, Inc., 35 Cal.2d 653 [221 P.2d 73, 23 A.L.R.2d 216], on the ground that <rin its earlier form, the statute expressly protected both the idea, the ‘product of the mind,’ and ‘the representation or expression thereof.’ ” Since in the present case the cause of action arose before the statute was amended, the court follows the Stanley and Golding cases in treating plaintiff’s radio program idea as protectible literary property.
*814As it was originally enacted, Civil Code, section 9801, referred generally to “any product of the mind,” and then listed the different types of intellectual property that might exist. Among those listed was “a composition in letters or art,” and protection was extended not only to the product itself, that is, to the composition in letters or art, but also to any representation or expression thereof. Thus protection was not limited to the exact literary composition created by the author, but extended to other and different representations and expressions that might be copied therefrom. Under its terms, however, the protection existed only so long 11 as the product and the representation or expression thereof” remained in the author’s possession. It was thus arguable that the common law copyrights in a literary composition might be lost by a transfer of possession of-the manuscript even without actual publication.
In 1947 the statute was amended to deal specifically with compositions in letters or art,2 and the provisions relating to other forms of intellectual property and the limitation with respect to possession were deleted.3 Thus the amendment made clear that the author’s common law copyrights in a composition in letters or art are not dependent upon possession of the composition or its expression or representation, but are only lost in the event of publication as provided in section 983 of the Civil Code. The statute now deals expressly with copyrights as distinct from rights of possession or ownership of the original manuscript itself. (Cf., Civ. Code, § 985.) Neither before nor after its 1947 amendment, however, did section 980 purport to define the extent to which property rights might exist in original ideas as distinct from their treatment and development. An expression or representation of an original composition might consist only in the statement ; of the general outline of the dramatic core or plot of a play I or movie, or in the statement of a general plan for a radio *815program. (Golding v. R.K.O. Pictures, Inc., supra; Stanley v. Columbia Broadcasting System, Inc., supra.) Thus, if the Golding and Stanley eases were correctly decided, protection could be extended to the basic dramatic core of a play or the plan of a radio program under the present statute just j as it was in those cases under the former. i
g
In my opinion, however, the court properly accepted the concession of the parties in the Stanley case that sections 980 and 983, as formerly worded, were but codifications of the common law. The 1947 amendments to those sections, which antedated the decisions in the Stanley and Golding cases, merely clarified this fact by eliminating the language that might have been interpreted as making the duration of common law copyrights turn on possession rather than publication. Accordingly, the common law rule that ideas are not property, which the court now recognizes (Weitzenkorn v. Lesser, ante, p. 778 [256 P.2d 947]), should be applied in this case by holding that plaintiff has not stated a cause of action for plagiarism.
From a comparison of the two programs it cannot be said as a matter of law that defendants have not used plaintiff’s radio program idea. Although that idea is not property, it may be protected by an express or an implied-in-faet con- , tract. (Weitzenkorn v. Lesser, ante, p. 778 [256 P.2d 947]; Stanley v. Columbia Broadcasting System, Inc., 35 Cal.2d 653, 674 [221 P.2d 73, 23 A.L.R.2d 216]; dissent.) Since plaintiff has pleaded counts in both express and implied-infaet contract, I concur in the judgment to the extent that it reverses the order sustaining the demurrer to those counts.
Spence, J., concurred.
''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.”
‘‘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.”
A separate subdivision dealing with other forms of intellectual property was added to section 980 in 1949. (Stats. 1949, eh. 921, § 1.)