I concur in the judgment of affirmance. The problem in this case is to me a closer one and more difficult of solution than that presented in Golding v. R.K.O. Pictures, Inc., post, p. 690 [221 P.2d 95]. In Golding there is no substantial similarity between the two works except in the so-called “central core,” which, in this decade, as I have shown (post, p. 710), is no more novel or original than (on a claim of like date) the Star Spangled Banner. But here there is cognizable similarity or dedueible relationship between every substantial element of the program which defendant produced and that which was proposed by plaintiff. Likewise, the evidence shows ample opportunity for piracy. The sole controlling question then is one of fitness for literary proteetibility of that which was pirated.
The problem here is more difficult than in Golding because here we are in a newer field; all of its vistas have been by no means explored. The merchandise offered for sale in this ease&emdash;and assertedly appropriated&emdash;is of a quite different character from that involved in Golding. The craft of together with the art of story-telling, has come down through the centuries, and legislatures and courts long have experimented with affording a measure of monopolistic or property-right proteetibility to literary compositions of nature even though all plotted stories, it is said, must be but an application of one or more of “The Dramatic Situations.” (Georges Polti.) Although original *669plots (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 property protection.
In Golding, where the details and whole treatment of plaintiffs’ play and defendant’s picture are essentially different, and where the only possibly cognizable similarity is in the so-called “central core” or “basic plot,” we can turn to a plot catalog and it becomes immediately obvious that no property right of plaintiffs has been appropriated in The Ghost Ship. But here, as above indicated, the problem and its solution are not so simple; the answer cannot as yet, I think, be found in a catalog nor even in the law books.
The plaintiff here did not write a story or a play. He does not claim originality in the handling of any dramatic plot. He does claim to have originated a plan for a radio program, and to have written and recorded the formal script for the proposed program. Such a plan, together with its script, if truly original, may constitute a protectible “product of the mind” (see Civ. Code, § 980). The plan, together with the script as formulated by plaintiff, has been set forth fully in the majority opinion and is largely again quoted in the dissenting opinion of Justice Traynor; it need not be repeated here. Suffice it to say that such plan proposed this version of the “theatre of the air” type of weekly program: Recognized plays—at least plays which had already been produced or scheduled for production in- motion picture form—would not be used; instead, sketches or scenarios which the author was offering for motion picture use would be adapted for radio presentation; the special announcer or “producer” for the radio presentation would be a prominent picture figure; he would ask the radio audience to send in their opinions of the show with particular reference as to whether they would like a motion picture version and their ideas for casting the parts; a cash prize would be awarded each week to the author of the “best letter”; the program would be denominated “_ [the producer] Presents” and, genetically, it was referred to as a “Hollywood Preview” or “Preview Parade.” Plaintiff does not claim to have himself authored any play offered for use on the proposed program.
Several years after the plaintiff’s plan was submitted to defendant it (in 1945) produced a program entitled “Holly*670wood Preview.” Like plaintiff’s plan it embodied a theatreof-the-air type presentation “of a motion picture of the future” with announcements pertaining to the production by an “eminent star of radio, stage and screen”; the studio audiences were requested to “fill out cards giving their comments” on the proposed picture production and “suggesting their favorite stars for the motion picture.” Likewise, the defendant in connection with the program it produced, announced a six-weeks prize-contest for best letters relating to the program in which letters, it was suggested, the listeners should “express their opinion of the stories ‘previewed’ ” and “vote for the stories they would like to see on the screen.”
The pervasive over-all similarity between plaintiff’s program-plan and that used by defendant is patent; the evidence establishes (under rules which historically have governed appellate courts) that plaintiff submitted his plan to defendant and that there was opportunity to appropriate it. The jury, under proper instructions, impliedly found that it was appropriated with an implied promise to pay its reasonable value. The basic question for us then, as I view it, is this: Is the plan as presented by plaintiff such an original product of the mind as to be legally the subject of private ownership ? If it is, and if a proteetible element of it has been appropriated by defendant, the verdict must stand; if not, the defendant is entitled to judgment.
A fair answer to such critical question requires this further factual analysis. No single basic element of plaintiff’s program can be said to be novel or to have originated with him; all such elements had been used before. Plaintiff, however, did suggest what appears to have been a novel adaptation and application of the audience participation idea—its adaptation and application, theoretically, to aid producers in the selection of stories for picture production. The real object of the audience participation technique is, of course, an appeal to the interest of the listeners. This program, it would seem, was devised to appeal particularly to “movie fans,” to win their radio program attention through catering to their motion picture interest. Upon the record it cannot be held that this particular application of the audience participation appeal, as it was dressed up and treated by plaintiff, was not originated by him nor that its admittedly somewhat varied and limited use in the program produced by defendant was so unsubstantial as to be legally negligible.
The learned and careful trial judge painstakingly explained *671to the jury that “Any person is free to use matters in the public domain as sources of literary or dramatic property but no person ... is free to use the composition of another if such composition involves a new arrangement, combination or treatment of matters in the public domain, although such matters by themselves might not be protectible. ’ ’ He further told the jury that “in order to return a verdict for plaintiff, the radio program idea which plaintiff expressed in writing and recorded, or some feature thereof, must have been new, novel and original. An abstract idea cannot be the subject matter of an implied agreement to purchase but if such abstract idea is reduced to concrete form, it may in such form be made the subject of such an agreement to the extent that the concrete form of such idea is new, novel and original.” Lastly, in this connection, it is to be noted that the jury were told; “You should determine, first [italics added], whether plaintiff’s idea could be the subject matter of such an agreement; secondly, whether the facts justify your finding that there was any such implied agreement; and, thirdly, whether defendant copied or appropriated from plaintiff any portion of plaintiff’s idea which is found to be a proper subject matter of such an agreement”; and he cautioned the jury, “If you find similarities between plaintiff’s program . . . and defendant’s program . . . you must determine, first, whether any of such similarities are in ideas or features or combinations thereof which are new, novel or original, and, secondly, whether, if any such similarities exist such similarities were appropriated by defendant from plaintiff’s program or, on the other hand, whether they were originated by employees of defendant or were secured from sources other than plaintiff’s program. Unless you are convinced . . . that there are such similarities between the two programs and that such similarities are a result of defendant’s use of plaintiff’s program rather than origination and development by employees of defendant or from the use of other sources, your verdict must be for the defendant . . . Independent creation of identical ideas is not a basis for liability. In order that a verdict can be returned against defendant there must have been copying or appropriation from plaintiff.”
It is difficult to conceive how the jury could have been more clearly or adequately instructed on the applicable law. The question as to whether, on the law as declared by the trial judge, the evidence admits of the findings made by the jury is admittedly a close one. But where, as here, there is an *672element of originality in plaintiff’s program and there is some similarity between every element of plaintiff’s program and that which defendant produced, and where plaintiff’s program was submitted to defendant and the jury has found, on the instructions quoted, that defendant copied and appropriated plaintiff’s program, including an original element thereof, in the construction of the one it produced, and further found the implied promise to pay the value of that which it appropriated, it seems to me that we should breach a fundamental principle of trial by jury were we to hold that the evidence does not support the verdict. In other words, I think that the dissenting view in this case rests not on a pure question of law nor on a total lack of evidence but, necessarily, on an analysis of the evidence which argues its weight. I do not think that because the element of originality in the combination of free ideas is comparatively small, we can hold that as a matter of law the composition is wholly unprotectible.
Obedient, then, to the principle declared in such cases as Cardillo v. Liberty Mutual Ins. Co. (1947), 330 U.S. 469 [67 S.Ct. 801, 807, 91 L.Ed. 1028]; Ellis v. Union Pacific Railroad Co. (1947), 329 U.S. 649, 653 [67 S.Ct. 598, 600, 91 L.Ed. 572, 576]; Eagles v. United States ex rel. Samuels (1946), 329 U.S. 304, 317 [67 S.Ct. 313, 320, 91 L.Ed. 308, 317]; Estate of Bristol (1943), 23 Cal.2d 221, 223 [143 P.2d 689]; Cate v. Certain-teed Prod. Co. (1943), 23 Cal.2d 444, 448 [144 P.2d 335]; Estate of Teel (1944), 25 Cal.2d 520, 526 [154 P.2d 384]; Fackrell v. City of San Diego (1945), 26 Cal.2d 196, 207 [157 P.2d 625, 158 A.L.R. 625]; Viner v. Untrecht (1945), 26 Cal.2d 261, 267 [158 P.2d 3]; Pewitt v. Riley (1945), 27 Cal.2d 310, 316 [163 P.2d 873]; De Young v. De Young (1946), 27 Cal.2d 521, 526 [165 P.2d 457]; Millsap v. National Funding Corp. (1944), 66 Cal.App.2d 658, 665 [152 P.2d 634]; Southern Calif. Freight Lines v. State Bd. of Equalization (1945), 72 Cal.App.2d 26, 29 [163 P.2d 776]; Berry v. Chaplin (1946), 74 Cal.App.2d 652, 663 [169 P.2d 442]; Medina v. Van Camp Sea Food Co. (1946), 75 Cal.App.2d 551, 556 [171 P.2d 445]; Seidenberg v. George (1946), 76 Cal.App.2d 306, 308 [172 P.2d 891], the verdict should be sustained.
For the reasons above stated I concur in the judgment of affirmance.