TRAYNOR, J, Dissenting.

Abstract ideas are common property freely available to all. What men forge out of these ideas with skill, industry, and imagination, into concrete forms uniquely their own, the law protects as private property. It gives the special form the stamp of recognition; it does so to stimulate creative activity. It does something more to stimulate creative activity: it assures all men free utilization of abstract ideas in the process of crystallizing them in fresh forms. For creativeness thrives on freedom; men find new implications in old ideas when they range with open minds through open fields. They would indeed be stifled in their efforts to create forms worth protecting, if in the common through which they ranged they were diverted from their course by one enclosure after another. "We must take care to guard against two extremes equally prejudicial: The one that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits and the reward of their ingenuity and labor; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded. The act that secures copyrights to authors guards against the piracy of the words and sentiments, but does not prohibit writing on the same subject." (Lord Mansfield, in Sayre v. Moore, 1 East 361, 101 Eng.Rep. 140.)

It would be ironic if copyright law, designed to encourage creative activity, became the instrument of its destruction. The very function of creative activity is to keep the common field in continuous germination; it is not for copyright law to render it barren by a succession of enclosures denying access to those who would cultivate it. "The object of copyright is to promote science and the useful arts. If an author, by originating a new arrangement and form of expression of certain ideas or conceptions, could withdraw these ideas or conceptions from the stock of materials to be used by other authors, each copyright would narrow the field of thought open for development and exploitation, and science, poetry, narrative, and dramatic fiction and other branches of literature would be hindered by copyright, instead of being promoted. A poem consists of words, expressing conceptions of words or lines of thoughts; but copyright in the poem gives no monopoly in the separate words, or in the ideas, conception, or facts expressed or described by the words. A copyright extends only to the arrangement of the words. A copyright does not give a monopoly in any incident in a play. Other authors have a right to exploit the facts, experiences, field of thought, and general ideas, provided they do not substantially copy a concrete form, in which the circumstances and ideas have been developed, arranged and put into shape." ( Eichel v. Marcin, 241 F. 404, 408-409; Nichols v. Universal Pictures Corp., 45 F.2d 119, 121; Holmes v. Hurst, 174 U.S. 82 [19 S.Ct. 606, 43 L.Ed. 904].) To insure free trade in ideas, therefore, the monopoly created by copyright is limited to "the arrangement and combination of the ideas . . . the form, sequence and manner in which the combination expresses the ideas." ( Bowen v. Yankee Network, Inc., 46 F. Supp. 62, 64.)

The policy that precludes protection of an abstract idea by copyright does not prevent its protection by contract. Even though an idea is not property subject to exclusive ownership, its disclosure may be of substantial benefit to the person to whom it is disclosed. That disclosure may therefore be consideration for a promise to pay. ( Bristol v. Equitable Life Assur. Soc., 132 N.Y. 264, 267 [30 N.E. 506, 28 Am.St.Rep. 568]; Moore v. Ford Motor Co., 43 F.2d 685, 686.) Unlike a copyright, a contract creates no monopoly; it is effective only between the contracting parties; it does not withdraw the idea from general circulation. Any person not a party to the contract is free to use the idea without restriction.

Even though the idea disclosed may be "widely known and generally understood" ( Schonwald v. F. Burkart Mfg. Co., 356 Mo. 435 [ 202 S.W.2d 7, 13], it may be protected by an express contract providing that it will be paid for regardless of its lack of novelty. ( Brunner v. Stix, Baer Fuller Co., 352 Mo. 1225, 1237 [ 181 S.W.2d 643]; High v. Trade Union Courier Pub. Corp., 69 N.Y.S.2d 526, 529.) An implied-in-fact contract differs from an express contract only in that the promise is not expressed in language but implied from the promisor's conduct. ( Yadkoe v. Fields, 66 Cal.App.2d 150, 158 [ 151 P.2d 906]; Ryan Associates, Inc. v. Century Brewing Assn., 185 Wn. 600, 603 [ 55 P.2d 1053, 104 A.L.R. 1353]; Cole v. Phillips H. Lord, Inc., 262 App. Div. 116 [28 N.Y.S.2d 404, 409].) It is not a reasonable assumption, however, in the absence of an express promise, or unequivocal conduct from which one can be implied, that one would obligate himself to pay for an idea that he would otherwise be free to use. Even an express contract to pay for "valuable information" to be submitted by the plaintiff does not carry the implication of a promise to pay if it is found upon disclosure to be common knowledge. ( Masline v. New York, New Haven Hartford R. Co., 95 Conn. 702, 708 [ 112 A. 639].) If the idea is not novel, the evidence must establish that the promisor agreed expressly or impliedly to pay for the idea whether or not it was novel. ( Masline v. New York, New Haven Hartford R. Co., supra; Soule v. Bon Ami Co., 235 N.Y. 609 [139 N.E. 754].)

The gravamen of plaintiff's cause of action is not the unauthorized use of his idea, since ideas may be freely borrowed, but the breach of an agreement to pay for its use. If the evidence discloses that there is no express or implied-in-fact contract there can be no recovery. ( Bristol v. Equitable Life Assur. Soc., 132 N.Y. 264, 267 [30 N.E. 506, 28 Am.St.Rep. 568]; Alberts v. Remington Rand, Inc., 175 Misc. 486 [23 N.Y.S.2d 892, 894]; Bowen v. Yankee Network, Inc., 46 F. Supp. 62, 63-64.) It is urged that even in the absence of express or implied contract, recovery may be predicated upon a quasi contract, or implied-in-law promise to pay the reasonable value of the idea if it is used. Quasi-contractual liability, however, is based, not upon any evidence of consensual agreement but in the absence of such agreement, upon the theory that the defendant would be unjustly enriched if he were allowed to use the idea without paying for it. A defendant who makes use of an abstract idea that is common property is not unjustly enriched thereby, since he has taken nothing to which the plaintiff or any other person has the right of exclusive ownership. Given the principle that abstract ideas are free, there is no more right to recovery for their use in an action in quasi contract than in an action for infringement of copyright. It has been consistently held that an action in quasi contract for the use of an idea is governed by the same principles that control a tort action for copyright infringement: the idea must be embodied in a concrete form attributable to plaintiff's own ingenuity ( Bailey v. Haberle Congress Brewing Co., 193 Misc. 723 [85 N.Y.S.2d 51, 52]; Bowen v. Yankee Network, Inc., 46 F. Supp. 62, 63; Thomas v. R.J. Reynolds Tobacco Co., 350 Pa. 262, 267 [ 38 A.2d 61, 157 A.L.R. 1432]; Moore v. Ford Motor Co., 28 F.2d 529, 539, aff'd. 43 F.2d 685, 688), and the form as distinguished from the abstract idea must be used by the defendant. ( Matarese v. Moore-McCormack Lines, Inc., 158 F.2d 631, 634; Plus Promotions, Inc., v. R.C.A. Mfg. Co., 49 F. Supp. 116, 117; Booth v. Stutz Motor Car Co., 56 F.2d 962, 969.) In either case the plaintiff must prove that property was taken that was his. His choice of alternative actions is analogous to that of a plaintiff whose personal property has been converted and who may elect between a tort action for the value of the converted property and an action based upon an implied-in-law contract to pay the reasonable value of its use. The plaintiff's election will govern the nature of his recovery, but it does not affect the basic elements of his cause of action. ( Bank of America v. Hill, 9 Cal.2d 495, 498-499 [ 71 P.2d 258]; Los Angeles Drug Co., v. Superior Court, 8 Cal.2d 71, 74 [ 63 P.2d 1124]; Hallidie v. Enginger, 175 Cal. 505, 508 [ 166 P. 1]; Corey v. Struve, 170 Cal. 170, 172 [ 149 P. 48]; Bechtel v. Chase, 156 Cal. 707, 711 [ 106 P. 81].)

Plaintiff developed a script and format embodying his idea for a radio program based upon the production of radio plays in a Hollywood setting. Had defendant appropriated the concrete form in which the idea was expressed, the "literary or artistic creation available for advertising use or otherwise" ( Williamson v. New York Cent. R. Co., 258 App. Div. 226 [16 N YS.2d 217]), plaintiff would have a cause of action for infringement of his common law copyright in the development of the idea that he had conceived. (Civ. Code, § 980; Barsha v. Metro-Goldwyn-Mayer Pictures Corp., 32 Cal.App.2d 556, 561 [ 90 P.2d 371]; Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54.) Plaintiff concedes, however, that there could be no recovery if this action were one in tort for copyright infringement and that he was properly nonsuited as to his cause of action based thereon, presumably because there was no appropriation of whatever craftsmanship gave concrete form to his program idea. For the same reason there could be no recovery in quasi contract. Plaintiff can only recover upon an implied-in-fact agreement that defendant would pay him the reasonable value of his idea.

Plaintiff's second cause of action, upon which the judgment in his favor rests, was based upon the allegation that he submitted his program idea to defendant's agents "at said defendant's special instance and request . . . under and pursuant to an implied agreement that if said defendant used plaintiff's said radio program or any part or portion thereof, that said defendant would pay to plaintiff the reasonable value thereof." There is substantial evidence to support the allegation that defendant accepted plaintiff's submission of his program idea with knowledge that he expected to be compensated for its use under an implied agreement that he would be paid for the idea if it proved to be commercially valuable and was in fact used by the defendant. The evidence does not, however, furnish support for an inference that defendant agreed to pay for the use of the idea even though it might prove to be "common or even open to public knowledge." ( High v. Trade Union Courier Pub. Corp., 69 N.Y.S.2d 526, 529.)

Such a promise cannot reasonably be implied from the practice of the radio industry. Admittedly, the industry is willing to pay for new ideas of commercial value to it, but there is no basis for an inference that a national radio network would agree to pay for the use of an idea, regardless of whether it is novel or shopworn, hackneyed, and commonplace. "A duty not to use an idea already known cannot be created by virtue of the fact that one makes a confidential disclosure of that idea." ( Smoley v. New Jersey Zinc Co., 24 F. Supp. 294, 300, aff'd. 106 F.2d 314.) Plaintiff's recognition that novelty is essential to the marketability of a radio program idea is implicit in his statement to Johnson that he had "what I thought was a new and a good radio idea." Defendant's policy is set forth in a standard form, of which plaintiff was aware, that all persons who submit program ideas for consideration were requested to sign. In that form, Columbia unequivocally disclaimed any intention to pay for the use of a non-novel idea. Its willingness to consider plaintiff's program idea was in accord with that policy. The evidence does not indicate any intention on defendant's part to deviate therefrom. It must therefore be held that plaintiff submitted his program idea to defendant upon the latter's implied-in-fact promise to pay him the reasonable value of the idea if it should prove to be novel and commercially valuable and if defendant should put it to use.

This appeal thus presents two questions for the decision of this court:

(1) Is plaintiff's radio program or any part thereof novel and commercially valuable?

(2) Is there similarity between plaintiff's idea and defendant's radio program with respect to any novel aspects of the former to support an inference that defendant made unauthorized use of plaintiff's idea?

I

Plaintiff testified that the basic idea of his program, for the use of which he claimed a reimbursement of $100,000, was to give the people of America "a voice in what pictures Hollywood shall produce in the years to come." His idea took the form of a proposed weekly radio program entitled "Walter Wanger Presents," "Preview Parade," or "Hollywood Preview," which was to present a play that might be suitable for motion picture production. The listening public was to be encouraged to write letters, by an offer of prizes for the best, commenting upon the motion picture value of the plays and suggesting stars for the leading roles; it was thus to have a voice in selecting stories and stars for motion pictures.

Virtually none of the elements of the proposed program to give the public a voice in this selection is novel. There is nothing novel in the idea of linking dramatized stories on the radio with the glamour of Hollywood. The following programs, broadcast nationally, were also based upon this idea: "Lux Theater of the Air," "Hollywood Star Time," "Screen Guild Theater," "Hollywood Premiere," "Hollywood Playtime," "Hollywood Players," "This is Hollywood."

There is nothing novel about plaintiff's title "Hollywood Preview." There was uncontradicted testimony that during the period defendant's program was broadcast, another program with the same title was broadcast locally over other stations. Moreover, these words have long been associated with the previews of Hollywood motion pictures, notably at Grauman's Chinese Theater and at the Carthay Circle Theater. To the millions of movie-conscious persons at whom all these programs are aimed, the title has become generic and descriptive, symbolizing the glamour associated with Hollywood, the bright lights, the milling throngs waiting for a glimpse of the celebrities attending a first showing of a motion picture. "There can be no property in words which are merely generic or descriptive." ( Johnston v. Twentieth Century-Fox Film Corp., 82 Cal.App.2d 796, 808 [ 187 P.2d 474].) That this title is generic or descriptive is clearly indicated by plaintiff's use of it in the script of his proposed program, not as its title (the proposed title was "Walter Wanger Presents"), but as a descriptive term, indicating the first performance of a proposed motion picture. In giving their program this title, defendants appropriated nothing in which plaintiff could claim a property interest.

There is nothing novel in the idea of listener participation in a radio program. Radio has long been glutted with programs in which listeners are importuned to participate. Thus listeners on the Jack Benny program were importuned to submit letters on the topic "I hate Jack Benny because — ." Listeners on the program entitled "The Shadow" were importuned to relate in a hundred words or less why they use Camay Soap. Listeners on the program entitled "Listeners' Digest" were importuned to write on what they considered the outstanding radio entertainment they had heard in the preceding week.

There is nothing novel in the idea of giving prizes to radio listeners for best letters. The idea of giving prizes for best letters is an ancient one in advertising.

There is nothing novel in the idea of soliciting the comments of listeners as to whether a radio program merits commercial presentation. Thus the Major Bowes program solicited the comment of listeners on the amateurs on the program with the object of determining whether they should receive professional engagements.

There is nothing novel about the following elements or their combination with the foregoing features of plaintiff's program: repetition and emphasis of the title throughout the broadcast, introduction of the master of ceremonies by the announcer, a master of ceremonies prominent in the motion picture industry, announcement of the title of the play to be presented and the stars therein, and announcement of the author of the play. These elements have for years been a part of almost every program featuring radio stories with a Hollywood connection. Defendant, as well as plaintiff, may use these elements freely either singly or in combination. (See, Ornstein v. Paramount Productions, Inc., 9 F. Supp. 896, 901.)

It may be possible to combine such hackneyed elements so imaginatively that they comprise a novel program idea, or to give them a new twist that places them in the category of fresh material. A new twist to a worn idea may be as much entitled to credit as an entirely new idea. "No man writes exclusively from his own thoughts, unaided and uninstructed by the thoughts of others. The thoughts of every man are, more or less, a combination of what other men have thought and expressed. . . ." ( Emerson v. Davies, Fed.Cas. 4, 436, 8 Fed.Cas. 615, 618.) "Presenting old material in a new plan or arrangement is sufficient to lend copyrightability to the resulting work." (Amdur, Copyright Law and Practice, 86; Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 363; Edwards Deutsch Lithographing Co. v. Boorman, 15 F.2d 35, 36.) Two architects may originate very different designs for the same structure, specifying the use of identical materials; each has a property interest in his design. Similarly writers may create original stories out of the same problem, as Anatole France created "Thais," Somerset Maugham, "Miss Thompson" ("Rain"), and Andre Gide, "Symphonie Pastorale." And in the literature of music there are many creative variations by one great composer on the themes of another.

Plaintiff has made no unique combination or interpretation of old material. Whatever novelty there may be in his program lies in a fresh variation of the listener participation idea, a variation of the idea in the Major Bowes program of having the listeners participate in determining whether amateur artists should become professionals. Although the evidence demonstrates that previous to the presentation of plaintiff's program to defendant there was no radio program in which the listeners participated in determining the selection of stories and stars for motion pictures, there is a question whether plaintiff has conceived a variation of the listener participation idea substantial enough to warrant a claim to novelty. Novelty of ideas in radio programs must be assessed in the light of the fact that many programs are commonplace presentations of commonplace materials. Inevitably ideas in this field may have a claim to novelty by virtue of their attention-getting possibilities, even though they lack the brilliance commonly associated with creative thought. A fresh application of the familiar, however dull or commonplace it may appear to the critical, may be a marketable idea if it gives enough promise of winning the attention of the public. It is not for the court to consider the quality of an idea or to pass judgment on the public's taste; the problem before it is not one of aesthetics but of property rights. ( Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-252 [23 S.Ct. 298, 47 L.Ed. 460].) On the other hand, in the fertile field of commonplaceness there is also a propagation of ideas whose claims to novelty are spurious, for whatever value they may have rests not on their uniqueness but on their resemblance to the familiar. The value of a fresh application of an idea that has thrived on repetition may lie, not in the application, but in the familiar idea itself. The secret of success of such programs as plaintiff's seems to be listener participation, and since listener participation has already been used for such a variety of purposes, it is open to question whether its application to plaintiff's purpose is imaginative enough to compel one to say that something new has been added, that there has been a variation of the old that in some measure transforms it. (See, Hirsch v. Paramount Pictures, 17 F. Supp. 816, 818.)

II

Whatever the validity of plaintiff's claim to novelty for his application of the listener participation idea, it constitutes his only claim to novelty, and defendant is not liable if it did not use that application.

There can be no finding that defendant used plaintiff's program idea without proof that it had access thereto. ( Twentieth Century-Fox Film Corp. v. Dieckhaus, 153 F.2d 893, 894, cert.den. 329 U.S. 716 [67 S.Ct. 46, 91 L.Ed. 621]; Lewys v. O'Neill, 49 F.2d 603, 608, 610.) Access is established by proof that employees of defendant read or heard plaintiff's program before or in the course of the development of defendant's program. ( Kustoff v. Chaplin, 120 F.2d 551, 560.) It is undisputed that before defendant's program was broadcast, the employees of defendant had read and considered the script, recording, and format submitted to them by plaintiff. There was a conflict in the evidence as to whether Hudson, defendant's western program director, developed defendant's program before plaintiff submitted his idea. The jury resolved that conflict against the defendant. Proof of opportunity to use plaintiff's idea, however, does not compel affirmance of the judgment without proof that defendant availed itself of that opportunity. ( Kustoff v. Chaplin, supra; Cain v. Universal Pictures Corp., 47 F. Supp. 1013, 1015.) Direct proof of use is seldom available. If there is proof of access, however, copying may be inferred from similarity between the two programs with respect to the feature of plaintiff's idea, which it will be assumed for the purpose of this dissent was novel, the application of listener participation to the determination of a story's suitability for motion pictures.

It must therefore be determined whether there is such a similarity between the two programs. Mere general similarity that proceeds not from the novelty of plaintiff's idea but from its commonplaceness is irrelevant. Only similarity with respect to what is novel in plaintiff's idea is relevant. ( Booth v. Stutz Motor Car Co., 56 F.2d 962, 969; Saco-Lowell Shops v. Reynolds, 141 F.2d 587, 593; Plus Promotions, Inc. v. R.C.A. Mfg. Co., 49 F. Supp. 116, 117.) The standards that govern this inquiry are the same as those governing the question whether there is relevant similarity between two productions to support a finding of copying in a suit for copyright infringement. When a plaintiff claims the protection of common law or statutory copyright for his literary effort, that protection extends only to any originality of treatment or expression that is copyrightable. When a plaintiff claims the protection of an implied-in-fact contract for an abstract idea, his idea must have the characteristic of novelty for which defendant has promised to pay. In both cases, only similarity appearing between the two works with respect to that which is protected in plaintiff's work is relevant. General similarity in nonprotectible elements, being irrelevant, cannot support an inference of copying in a piracy suit or use in a suit upon a contract. ( Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 17; MacDonald v. Du Maurier, 75 F. Supp. 655, 662; Shipman v. R.K.O. Radio Pictures Corp., 100 F.2d 533, 537; Rosen v. Loew's, Inc., 162 F.2d 785, 788.)

The majority opinion holds that the jury's finding will be upheld on appeal if "such similarity exists between plaintiff's and defendant's programs as to suggest to the average person the use by defendant of an idea originating with plaintiff. . . . In determining whether the similarity which exists between a copyrighted literary, dramatic or musical work and an alleged infringing publication is due to copying, the common knowledge of the average reader, observer, spectator or listener is the standard of judgment which must be used. . . . The evidence, in the form of the two programs alone, shows that there is substantial similarity to support the verdict." This statement assumes that a general similarity between the two programs justifies submitting to the jury the issue of use. Recovery can be allowed, however, only if there is similarity between the programs with respect to the novel aspects of plaintiff's program.

The majority opinion holds that plaintiff has met this requirement by introducing evidence that his program contains a novel idea. Once he has done this, the mere fact of introduction of the two programs into evidence is enough to allow the case to go to the jury and to support a verdict reached thereon. The jury compares the programs as an average listener would. If it receives the impression from its common knowledge that there is similarity between the two programs, this impression and common knowledge support the inference that defendant used plaintiff's program idea, and defendant is liable for the reasonable value thereof. The jury may determine that defendant must pay therefor, even though it is evident that plaintiff's protectible property interest in his program comprises only a small part thereof, and even though it is evident from a comparison of the two programs that there is no similarity between them in regard to the novel idea of plaintiff's program. Such a procedure may have the prejudicial effect of supporting a charge of piracy even though substantial similarity between two programs results from the use in both of stock situations or standardized techniques long used in the radio industry and therefore in the public domain. (See, Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 17, Moore v. Ford Motor Co., 28 F.2d 529, 536; Echevarria v. Warner Bros. Pictures, 12 F. Supp. 632, 635; 18 C.J.S. 231.) It is therefore of the greatest importance to narrow the issue of similarity. If the jury is permitted to reach its verdict on the basis of a general comparison of the programs in their entirety, there is great risk that similarity between the programs in their commonplace aspects will be weighed to defendant's disadvantage and that plaintiff will be permitted reimbursement for the non-novel elements of his program idea, for which defendant did not agree to pay. If a general similarity may of itself support a verdict in plaintiff's favor an appellate court would be powerless to afford relief from such a verdict, even though the only similarity is between the non-novel elements contained in both programs.

The error inherent in the scope of inquiry prescribed by the majority opinion is not obviated by its concession that, once the jury has returned a verdict for plaintiff that may have been based on irrelevant general similarity, "we look to the evidence to ascertain whether such similarity existed as to the portion of the production which plaintiff claims to have originated." We thus have the anomalous situation in which a case must first be submitted to the jury and a verdict returned for the plaintiff before the court can determine whether the case should have been submitted to the jury.

Such a result is not supported by the weight of case authority. In Harold Lloyd Corp. v. Witwer, 65 F.2d 1, plaintiff sought to enjoin the exhibition of a motion picture by the defendant on the ground that it constituted an infringement of a magazine story previously published by the plaintiff. Admittedly there was substantial similarity in plot and in several isolated comedy sequences, and on this basis, the trial court gave judgment for the plaintiff. The Circuit Court of Appeals for the Ninth Circuit, however, reversed the judgment, stating that an examination of the two scripts revealed no similarity in those elements of plaintiff's production that were the product of his own ingenuity and creative talent. In discussing the fact that plaintiff relied upon admitted similarities in basic elements of each production, the court stated:

"In the case at bar, if it be assumed that there are such similarities between the story and the play as to provoke in the casual observer the consciousness that there is such a similarity between them, and that copying may be inferred therefrom, we are still confronted with the fact that mere similarity does not necessarily involve literary piracy or an infringement of a copyright. Such similarities then as exist would require further analysis to determine whether or not they are novel in the story and thus copyrightable. The copyright of a story only covers what is new and novel in it, so that the question of infringement involves a consideration of what is new and novel in the story to which the author has acquired a monopoly which has been misappropriated by another . . . `It should also be borne steadfastly in mind, that if a work is not entirely original, there is no copyright in the unoriginal part, which will prevent its use, separately, or in combination, with matter not covered by copyright. Hence, of course, any inquiry as to infringement must exclude permissible reproduction of such non-original matter.'" (65 F.2d 23-24.)

In Dymow v. Bolton, 11 F.2d 690, the Circuit Court of Appeals for the Second Circuit also reversed a trial court verdict for the plaintiff that had been reached upon admitted similarity in non-original elements of the two productions. In stating that infringement could not be established by cutting and trimming down to basic themes and concepts, the court stated: "This incomplete skeleton the two plays have in common, but it is with real difficulty that the flesh and blood, the incidental, yet essential adornment and trimming, of the plays can be cut away to show similarity between a few bones. This difficulty is fatal to plaintiff's case . . . the copying which is infringement must be something . . . recognized as having been taken from the work of another." ( 11 F.2d 692. See also Twentieth Century-Fox Film Corp. v. Dieckhaus, 153 F.2d 893; Nichols v. Universal Pictures Corp., 45 F.2d 119; Frankel v. Irwin, 34 F.2d 142; Cain v. Universal Pictures Corp., 47 F. Supp. 1013.)

It follows that the issue before this court is not, as the majority opinion holds, whether there is substantial similarity between the two programs, but whether there is evidence of substantial similarity between the two programs with respect to plaintiff's novel idea to justify submitting the case to the jury. That issue can be determined only by the comparison of the two radio scripts whose contents are not disputed. Such a comparison will reveal whether there is relevant similarity between them. Defendant's motion for a directed verdict raised the issue whether there was such similarity. If there was no evidence of such similarity, then no proper inference of copying could be drawn, and the trial court should not have let the case go to the jury on the basis of the general similarity between the two programs. In denying the motion for a directed verdict, the trial court committed reversible error. ( Hewitt v. Coward, 180 Misc. 1065 [41 N.Y.S.2d 498, 500]; Soy Food Mills, Inc. v. Pillsbury Mills, Inc., 161 F.2d 22, 25; Nichols v. Universal Pictures Corp., 45 F.2d 119, 122; Wiren v. Shubert Theatre Corp., 5 F. Supp. 358, 362; Becker v. Loew's, Inc., 133 F.2d 889, 894; Dorsey v. Old Surety Life Ins. Co., 98 F.2d 872, 874 [119 A.L.R. 1250]; Barbadillo v. Goldwyn, 42 F.2d 881, 885; Eastern Wine Corp. v. Winslow-Warren, Ltd., 137 F.2d 955, 960; California Fruit Growers Exch. v. Sunkist Baking Co., 166 F.2d 971, 973; Kaeser Blair, Inc. v. Merchants' Assn., Inc., 64 F.2d 575, 576; see Code Civ. Proc., § 426, subd. 3.)

The cases relied upon by the majority indicate that only when there is evidence of relevant similarity to support an inference of copying is the question of copying submitted to the jury. ( Universal Pictures Corp. v. Harold Lloyd Corp., 162 F.2d 354, 363; Fendler v. Morosco, 253 N.Y. 281, 287 [ 171 N.E. 56]; Barsha v. Metro-Goldwyn-Mayer Pictures Corp., 32 Cal.App.2d 556, 561 [ 90 P.2d 371].) In reversing the judgment, this court would not be substituting its judgment for that of the jury, as the majority opinion suggests, but would be determining that there was insufficient evidence to support the implied finding that there was similarity between the two programs with respect to plaintiff's novel idea.

Plaintiff's program was based on the idea, in his own words "the most important idea in my show," that it would afford the public a "voice in what pictures Hollywood shall produce in the years to come." This idea is emphasized in virtually every paragraph of the program: "Wanger: How do you do, ladies and gentlemen. Welcome to our Hollywood Preview Parade, a radio show designed for your pleasure and to give you a voice in what pictures Hollywood shall produce in the months to come. Hollywood is very interested in giving you motion pictures you want to see. Unfortunately producers do not and cannot always know just what you do want. This is the reason for this `Preview Parade.' Each week we plan to present a radio story we think will make a good film. We ask you to send us your opinion and suggest players for the leading roles. Our sponsor will give worthwhile cash prizes for the best letters, but more about that later.

"Of the five stories we have so far presented this series, three will be made into motion pictures largly because of your voting. . . .

"Boardman: . . . Each week Mr. Wanger selects a story which he feels should be made into a picture. You are asked to write to Mr. Wanger and give him your opinion. The sponsors pay $500 for the best letter written by one of our listeners and if enough of you vote for it our play will be produced as a motion picture.

"Wanger: . . . `So Gallantly Gleaming' tells a thrilling and romantic story. . . . Listen closely. Do you think it should be made into a motion picture? Your votes will decide.

"Boardman: . . . Now again a word as to the real idea behind this program. Each week Walter Wanger Presents brings you a story which we think would be a good motion picture. And here is your part in the program. We ask you to write to Mr. Wanger, telling him whether or not you would like to have this play made into a motion picture, and why. Also include your choice of stars to play the leading roles. The best letter received each week will receive an award of $500 from our sponsor. . . . And believe me, Hollywood is waiting for your vote. Whether or not you win a prize, your vote will help decide whether or not to film `So Gallantly Gleaming.' The American picture-going public has long said it wished a voice in the choice of stories presented on the screen. Here is the chance for you to have that voice and make it heard across the nation. . . .

"Last week Mr. Wanger presented `Out of the Night.' . . . A storm of argument was aroused. 68,000 letters have been received to date, and we are happy to announce that Warner Brothers Studio have arranged to make this startling story into a film in the near future. So, thanks to your letters, you have helped Warner Brothers to their decision to film `Out of the Night.' . . .

"Wanger: . . . Thank you, [board of experts] . . . Do you, ladies and gentlemen, agree with the opinions of our guests? Do you agree that `So Gallantly Gleaming' should become a motion picture? And who do you think should play the leading roles? Won't you write and tell us. Remember that whether your letter is best and wins the prize or not, you are helping Hollywood decide on what to give you on the screen. . . ." (Italics added.)

It is apparent from defendant's programs that their basic idea was to simulate the "first showing of a new motion picture in the film capitol" and thereby to capture in its "radio version of [a] Hollywood Preview," the "same spirit of enthusiasm," to make its listeners feel they were viewing that glamorous event. The programs were described as a "Hollywood Preview of a motion picture of the future," as a preview of a "new story written especially for the screen," and "now scheduled for production" or "now in preparation" at one of the motion picture studios. The public was to be given "a glimpse into the movies of tomorrow" but nobody at any time was asked to influence their selection. The studio audience was requested to "[fill] out cards giving their comments" on the play and "suggesting their favorite stars for the motion picture" for the purpose of giving a Hollywood atmosphere by adapting to a broadcast of motion pictures "previewed" on the air, the custom of having the motion picture audience fill out preview cards. There was no intimation that the reaction of the studio audience would in any way influence the production of the picture. In contrast the radio audience comments solicited in plaintiff's program were not for the purpose of atmosphere; they were indispensable to his idea of giving the public a voice in the selection of motion pictures to be filmed. On August 21, 1945, defendant announced that a contest awarding prizes for best letters would be staged for a six-weeks period; that listeners would thus be given "a chance to express their opinion of the stories they would like to see on the screen." Defendant's contest was the time-honored advertising scheme used to increase sales of the sponsor's gasoline. To participate, listeners had to get entry blanks from the sponsor's service stations. The contest, lasting only six weeks, was an incident of the program, not its core. Defendant's program did not, in its contest feature, or otherwise, give the listening public the impression that "if enough of [the listeners] vote for it [the] play would be produced as a motion picture." It was specifically announced on defendant's programs that a "motion picture of the future" was being presented: on three programs it was stated that the plays were in production.

A comparison of defendant's program with the application in plaintiff's program of the listener participation idea, makes it clear that defendant did not in any of its programs copy that idea. There is a fundamental difference between the themes of the two programs. The basic idea of plaintiff's program was listener participation in the selection of stories and stars for motion picture production in the future. The basic idea of defendant's programs was listener participation in the simulation of whatever glamour attends a Hollywood preview. If there is kinship between the two programs, it rests on their common capitalization of Hollywood glamour. But defendant stops short of executing plaintiff's idea that the public might do more than behold the glamour that spells Hollywood by participating in determining by what and by whom it should be bedazzled.

Spence, J., concurred.

Appellant's petition for a rehearing was denied August 31, 1950. Traynor, J., and Spence, J., voted for a rehearing.