I concur in the reversal of the judgment but I cannot concur in the greater part of the reasoning and law propounded in the majority opinion.
It is stated by the majority that “Kurlan’s complaint shows that any property interest which McKenney may have had in either the story or characters of ‘My Sister Eileen’ has been lost by publication.” The pleading shows that the story and characters were made public in a play, picture, magazines and books. It also shows that the stories had never been presented on the air and that by written agreement plaintiff’s assignor had expressly reserved the sole and exclusive right *816to use for radio broadcasting purposes these leading female characters. “The owner of the common-law copyright has a perpetual right of property and the exclusive right of first general publication, and may, prior thereto, enjoy the benefit of a restricted publication without forfeiture of the right of general publication. Thus, he may communicate the contents of his work under restrictions without forfeiture of the right. This communication of contents under restriction, is known as a restricted or limited publication.” (Emphasis added; Bobbs-Merrill Co. v. Straus, 147 F. 15, 18.) “A limited publication of a subject of copyright is one which communicates a knowledge of its contents under conditions expressly or impliedly precluding its dedication to the public. Abernethy v. Hutchinson, 3 L.J.Ch. 209; Nichols v. Pitman, 26 L.R.Ch.Div. 374; Caird v. Sime, 12 L.R.App.Cas. 326; Tomkins v. Halleck, 133 Mass. 32, 43 Am.Rep. 480; Palmer v. De Witt, 47 N.Y. 532, 7 Am.Rep. 480; Turner v. Robinson, 10 Ir.Ch. Rep. 121, 135; Laura Keene v. Wheatley & Clarke, 9 Am.Law Reg. 33-80, Fed.Cas. No. 7,644.” (Werckmeister v. American Lithographic Co., 134 F. 321 [69 C.C.A. 553, 68 L.R.A. 591]; Amdur, Copyright Law and Practice, pp. 354-356.)
“It is well settled that the public performance of a dramatic or musical composition is merely a limited publication which does not confer upon the hearer or spectator any title to the manuscript, or any right to a copy which may have been obtained surreptitiously, or which may have come into his possession accidentally; because only a publication of the manuscript will amount to an abandonment of the rights of the author and a consequent transfer of them to the public domain, and no such publication occurs as long as the author exercises control over his manuscript, or has a right to< such control. (Crowe v. Aiken, Fed.Cas. 3441; Keene v. Clark, 5 Robertson (28 N.Y. Super.Ct.) 38; Keene v. Kimball, 16 Gray (Mass.) 545, 77 Am.Dec. 426; Brown v. Ferris, 122 Misc. 418, 204 N.Y.S. 190.) Consequently a special public use of it by the author for his own benefit is no evidence of abandonment of his property therein, because such a use is entirely consistent with his exclusive right to its control. Thus, the reading, recital or stage representation of a manuscript play in public for profit, with the consent of the author, does not constitute any evidence of abandonment to the public of any rights arising from the authorship of the play; nor does it deprive him of his right to copyright the play. (Boucicault v. Fox, 3 Fed.Cas. 977.)
*817“A ticket of admission merely entitles the holder to witness and enjoy a single exhibition of the play, without conferring upon any member of the public the right to obtain surreptitiously the possession of the original manuscript for subsequent representation for profit, or to reproduce the composition from memory or from notes taken during the performance, in order to share in the earnings of its public presentation. If the author of a play were not entitled to claim, the protection of the lam to secure to him, the profits resulting from, public performances of his composition, dramatists would soon cease to write pla/ys for the amusement and entertainment of the public, unless subsidised by government or aided by primate patronage: for the revenue derived from the sale of published copies of a popular drama would be negligible in comparison with the box-office receipts. (Werckmeister v. American Litho. Co., 134 F. 321 [69 C.C.A. 553, 68 L.R.A. 591].)
“Where an uncopyrighted and unprinted drama has been publicly performed at a theatre with the author’s consent, no unlicensed person has a right to repeat the performance in a public theatre, or to publish copies of the dramatic composition, whether obtained surreptitiously or reproduced from memory after witnessing a performance thereof; for the author’s permission to act it at a public theatre does not amount to an abandonment of his title to it or to a dedication of it to the public; and the proprietor of the exclusive performing rights, or his assignee, by virtue of his common law rights, is entitled to an injunction restraining an unauthorized representation thereof. (Ferris v. Frohman, 223 U.S. 424 [32 S.Ct. 263, 56 L.Ed. 492].)
“Where the intent of the owner is to give the public merely a right to a limited use of his literary property or to use it in a particular way, the owner’s act does not constitute an abandonment of all his property; but the public acquires a right to use it only to the extent of the dedication. (Aronson v. Baker, 43 N.J.Eq. 365, 12 A. 177.) ” (Ball, Law of Copyright and Literary Property, 1944, § 61, p. 135.) (Emphasis added.)
It is common practice to reserve the dramatizing rights on the sale of a book and these rights are respected and upheld by the courts (Ford v. Charles E. Blaney Amusement Co., 148 F. 642). Section 1(b) of the 1909 Copyright Act expressly confers upon the copyright proprietor the exclusive right to transform the work by translation, dramatization, *818adaptation, and by making other versions embodying material and substantial parts of the original in order to enable the author to reap the profits of his work in every field of intellectual property in which it can be exploited advantageously by vending copies or by public performance for profit (O’Neill v. General Film Co., 157 N.Y.S. 1028). This section has been literally construed by the courts to cover any adaptation of a literary work which tells the same story as the original, whether the resulting drama be adapted for presentation in the form of a stage play or for exhibition on the screen (Kalem Co. v. Harper Bros, 222 U.S. 55 [56 L.Ed. 92, Ann.Cas. 1913A 1285]; International Film S. Co. v. Affiliated Distributors, 283 F. 229).
\For the purpose of the demurrer, all allegations of the complaint must be taken as true. It is alleged in the complaint here that on or about the 11th day of March, 1946, Ruth MeKenney and plaintiff entered into an agreement in writing, |wherein Ruth MeKenney did grant to plaintiff the sole and exclusive right to use for radio broadcasting purposes the ¡leading female characters created by her and featured or I portrayed in “said stories, stage play and motion picture Í entitled ‘My Sister Eileen,’ and said Ruth MeKenney did ; furthermore grant to said plaintiff Arthur Kurlan all radio j broadcasting rights therein and thereto which had theretofore i been expressly reserved by said Ruth MeKenney in eonnec- ! tion with each and all of said prior licenses and uses of said characters in connection with said stories, play and motion I picture hereinbefore mentioned.” (Emphasis added.) It is further alleged that after the expiration of the original term of the agreement the time was extended by the parties, Ruth MeKenney and plaintiff; that Ruth MeKenney reserved and retained the right to receive royalties in connection with the production of any and all radio programs licensed under the f agreement. Hence, plaintiff’s assignor reserved all radio rights in the two leading characters, and it cannot be true, as is stated in the majority opinion, that “as a matter of law, there is no protectible property in the ‘basic dramatic core’ of the story, its characters and their relationships, or the form and manner of its expression ’ ’ because there has been a publication. The allegations of the complaint show that the , publication was a limited one with certain rights reserved.
It has been recognized that different types of rights may be reserved in literary works and that publication may be restricted so as to preserve those rights. (See Manners v. Famous *819Players-Lasky Corp., 262 F. 811; L. C. Page & Co. v. Fox Film Corp., 83 F.2d 196; Gogniat v. Universal Pictures Corp., 35 U.S. Pat.Q. 117; Casino Productions v. Vitaphone Corp., 163 Misc. 403 [295 N.Y.S. 501]; Society of European S.A.A.C. v. New York Hotel Statler Co., 19 F.Supp. 1; Gillette v. Stoll Film Co., 120 Misc. 850 [200 N.Y.S. 787]; Benelli v. Hopkins, 198 Misc. 734 [103 N.Y.S.2d 526]; G. Ricordi & Co., v. Paramount Pictures, 189 F.2d 469, cert.den. 342 U.S. 849 [72 S.Ct. 77, 96 L.Ed. 641].)
At the time Hurlan’s cause of action arose, § 980 of the Civil Code provided protection for ‘1 any product of the mind . . . and in the representation or expression thereof.” (Emphasis added.) The majority says, however, that the two leading characters involved were unoriginal and unworthy of protection inasmuch as any property right in them had been lost by publication. As I have heretofore stated, it is my opinion that the publication was a limited one, with the radio rights expressly reserved and that there was a protectible property interest involved. The statute reads, for our purposes, as it did when this court decided Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690 [221 P.2d 95], wherein a basic, dramatic core with one important dramatic figure was held to constitute a protectible interest.
Characters and characterizations which are products of the mind~s7üñtM be held to be protectible property interests. The radJoTmdustry is a large one, and radio programs are fre"qUeStly-based upon a ¡single character, personality or characterization. To illustrate the extremely valuable theatrical-radio properties which are in existence one only must look as far as the radio column in his daily paper to note the pYdgrams," "built Around a single character, or family, which continue from day to day, week to "week, and year to year.* It should be apparent to even the least intelligent that these programs are as valuable as the most gilt-edged security listed on the Stock Exchange. No court would hesitate to extend its protection to the lawful owner of a security, and yet equally *820valuable “character-types” are not given the same protection. It is surély a subject'of judicial notice that Calif ornials-t']ie center of the motion picture industry of the world and if its laws are inadequate for the protection of the individual creative writer who must find a market for his work, then those laws should be amended. It is axiomatic that the movie.industry could not exist without_the writer and yet, if the present trend^confemes, "the"writer will vanish from'the scene. The i same is true~of the radio industry. A writer submits his work . to either industry in the hope and rightful expectation that l if his work is used, he will be paid its value, but, under pres-l ently existing conditions, and court decisions, these industries l may make minor ■ changes in the play, or manuscript, and (escape liability and any obligation to pay any consideration ¡therefor. As Goldsmith wrote (Enquiry into the Present State of Polite Learning) as an epitaph to the memory of his friend, Ned Pur don, an author:
“Here lies poor Ned Pur don, from misery freed,
Who long was a bookseller’s hack;
He led such a damnable life in this world,
I don’t think he’ll wish to come back!”
The statement attributed to Stanley v. Columbia Broadcasting System, Inc., 35 Cal.2d 653 [221 P.2d 73, 23 A.L.R.2d 216], found in the majority opinion here is misleading so far as this case is concerned. That statement is “ Hurlan’s radio program idea was to capitalize upon a famous and successful story, play and motion picture by producing it on the radio. The court may take judicial notice of the fact that there, is nothing new and novel in' this idea which might constitute , protectible property. ” We said there that there was “nothing new in a play broadcast over the air.” There is nothing new in a play broadcast over the air, but there is something new in a play broadcast by someone else over the air for the first time if the author of that play has reserved the radio rights [thereto, because the play is being used in a medium new to it. The Stanley case was not concerned with the broadcasting rights in a play; it was concerned with a combination of ideas which was being used for the first time in a certain way and the originator of that combination of ideas, with the permission of the author of the new play, was suing the broadcasting system.
Section 426(3) of the Code of Civil Procedure now provides that the copy of the production as to which the infringement is claimed and a copy of the alleged infringing produc*821tion must be attached to the complaint. This permits the trial court, upon demurrer, to decide in the first instance whether or not there is similarity between the two productions. Heretofore, the question of similarity has been considered to be one of fact (Stanley v. Columbia Broadcasting System, Inc., 35 Cal.2d 653 [221 P.2d 73, 23 A.L.R.2d 216]; Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690 [221 P.2d 95]; Kovacs v. Mutual Broadcasting System, Inc., 99 Cal.App.2d 56 [221 P.2d 108]; Frankel v. Irwin, 34 F.2d 142; Twentieth Century-Fox Film Corp. v. Dieckhaus, 153 F.2d 893), and the test to be that impression received by the average reasonable man upon a comparative reading of the two works. There should be no change in the test to be used under the new code section. It should still be that of the reasonable man. In other words, if reasonable minds could differ as to whether or not there is similarity between the two works, then the question is still one of fact for the jury.
In the play “My Sister Eileen,” Ruth, as narrator, is a young, attractive, intelligent working girl who is the unwilling victim of a succession of difficulties created by her sister, Eileen, with whom she lives because “apartments are hard to find in New York.” Ruth is the balancewheel for her completely thoughtless, impulsive, scatterbrained sister, Eileen. Eileen is hopelessly unable to hold a job and has had six of them within four months. She has no financial sense and never has any money because she spends every cent she has on “junk” which everybody seems to be able to sell her. She uses the common exchequer and family funds without Ruth’s knowledge or consent and makes life unbearable for Ruth with her scatterbrained schemes; embarrasses Ruth by ridiculous lies told without malice or intent to creat mischief but with every desire to help her sister and roommate. Ruth and Eileen are from Ohio. Ruth has acquired some city “sophistication” while Eileen has not and remains completely naive. Ruth’s supposed fiancé, Claude, is described as a blustering “braggart,” but she is in love with a serious, intelligent businessman, Lloyd Carter.
Jane, in the radio production “My Friend Irma,” as narrator, is a serious, intelligent working girl from Wyoming who has acquired a certain amount of city “sophistication.” She lives with her “friend Irma” because apartments are “hard t.o find these days.” Jane is in love with a serious, intelligent businessman, Richard Rhinelander III. Irma is gay, careless, *822impulsive, thoughtless and completely lacking in sophistication ; she causes Jane endless difficulties because of her scatterbrained schemes. Irma’s boy friend, Al, is described as a “phony windbag.” In this program, as in the play “My Sister Eileen” there is an eccentric landlady.
In conjunction with the similarities just set forth, attention is called to the summary of the two productions as set forth in the majority opinion. It cannot be said, as a matter of law, that there is no similarity between the two. The briefs show that in describing the radio program entitled “My Friend Irma,” the New York Herald-Tribune, on March 22, 1948, stated in a dramatic criticism and review of the program: “The central idea, that of two young girl roommates, one bright, the other one almost intolerably innocent of all knowledge, was taken almost intact from a very funny play entitled ‘My Sister Eileen.’ ” (Emphasis added.) The question of ' similarity between the two productions is most assuredly one on which reasonable minds might differ as can be seen from the above quoted dramatic review and the fact that three justices of the District Court of Appeal (see (Cal.App.) 233 P.2d 936) as well as myself feel that within the common knowledge of the average reader, observer, spectator or listener there are sufficient similarities to induce the belief that copying ' has taken place. It is true that there are differences between 1 the two programs, but as Mr. Justice Edmonds said in the Golding case “such differences go to the quality of the plagiarism, and not to its existence or nonexistence.” (Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 699 [221 P.2d 95].)
No test other than the reasonable minds one has ever been laid down for determining the question of similarity between the alleged infringed and infringing productions and there is no reason why, in determining the matter upon a demurrer, the trial court should apply any other rule. As I read the majority opinion in this case and in that of Weitzenkorn v. Lesser, ante, p. 778 [256 P.2d 947] (this day filed) I do not find that any test has been proposed other than that of “substantial similarity.” In Weitzenkorn v. Lesser, supra, it is said “if some substantial similarity between the compositions reasonably could be found, the issues of similarity and of copying are to be determined by the trier of the fact” and in the instant case it is said that “If, from a comparison of the productions, a question of fact is shown to exist, the cause should be submitted to the jury.” In my opinion, these statements are not the equivalent of saying that the question is *823one for the jury if reasonable minds could differ on whether or not the two productions are similar.
I would reverse the judgment with directions to the trial court to overrule the demurrer as to all counts and permit defendants to answer if they be so advised.
Appellant’s petition for a rehearing was denied May 28, 1953. • Carter, J., and Spence, J., were of the opinion that the petition should be granted.
Sherlock Holmes; The Thin Man; The Fat Man; Michael Shane; Count of Monte Cristo; Crime Doctor; The Whistler; Mr. District Attorney; A Date with Judy; Adventures of Bulldog Drummond; Adventures of Ellery Queen; Adventures of the Falcon; Jack Armstrong; Blondie; Captain Midnight; The Lone Banger; Stella Dallas; Ma Perkins; The Great Gildersleeve; Perry Mason; Superman; Young Dr. Malone; The Cisco Kid; Fibber McGee and Molly; Mr. and Mrs. North; One Man’s Family; The Aldrich Family; Amos ’n’ Andy; Edgar Bergen and Charlie McCarthy; Bums and Allen; and many others.