TRAYNOR, J. Dissenting. The majority opinion in this case, unlike that in Stanley v. Columbia Broadcasting System, ante, p. 653 [221 P.2d 73], recognizes that the question whether there has been copying of plaintiffs’ work cannot be submitted to the jury until it has been determined by the trial judge that there is evidence of substantial similarity between plaintiffs’ play and defendants’ motion picture with respect to the protectible features of plaintiffs’ play. With these conflicting decisions before him, may a trial judge on motion for nonsuit or directed verdict determine on the authority of Golding v. B.K.O. whether there is relevant similarity between the two productions, and only if there is such similarity, deny the motion and submit the ease to the jury? Or must he, on the authority of Stanley v. C.B.S., deny the motion without consideration of the issue of relevant similarity and let the case go to the jury before determining whether plaintiff established a cause of action upon which the case could properly have gone to the jury?
I cannot agree that a comparison of defendants ’ picture with plaintiffs’ play reveals evidence of similarity not attributable to the use of a common idea, theme, or plot in the public domain and therefore not subject to exclusive appropriation by any author. I would therefore reverse the judgment.
Under Civil Code section 980*, the author of an original composition has a property interest in it that will be protected [702]against copying to the extent that it is marked by original expression in “a concrete form, in which the circumstances and ideas have been developed, arranged and put into shape.” (Eichel v. Marcin, 241 F. 404, 409; Holmes v. Hurst, 174 U.S. 82 [19 S.Ct. 606, 43 L.Ed. 904].) That principle governs the determination of a charge of piracy, whether under federal or common law copyright. (Twentieth Century-Fox Film Corp. v. Dieckhaus, 153 F.2d 893, 894, 897-898; Echevarria v. Warner Bros. Pictures, Inc., 12 F.Supp. 632, 634; Columbia Pictures Corp v. Krasna. 65 N.Y.S.2d 67, 68.)
“Exclusive ownership” is limited to the “representation or expression.” (Civ. Code, § 980.) Themes, ideas, and plots in books or plays are a common fund from which every author may draw the basic materials of his work without restriction. They are not subject to exclusive ownership, and no author can acquire a superior interest in a theme or plot by making an earlier use thereof. “The copyright cannot protect the fundamental plot which was common property long before the story was written; it will protect the embellishments with which the author added elements of literary value to the' old plot, but it will not operate to prohibit the presentation by someone else of the same old plot without the particular embellishments.” (London v. Biograph Co., 231 F. 696, 698-699 [145 C.C.A. 582]; Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 24; Lewys v. O’Neill, 49 F.2d 603, 607; Dymow v. Bolton, 11 F.2d 690, 692; Nichols v. Univeral Pictures Corp., 45 F.2d 119, 121, 122; Cain v. Universal Pictures Corp., 47 F.Supp. 1013, 1016; Dellar v. Samuel Goldwyn, Inc., 150 F.2d 612, 613; Shipman v. R.K.O. Radio Pictures Corp., 100 F.2d 533, 536; Fendler v. Morosco, 253 N.Y. 281, 287 [171 N.E. 56]; see Chafee, Reflections on the Law of Copyright, 45 Columb.L.Rev. 503, 513-514.) The author’s only property interest is in the concrete form that he has developed by his own originality and craftsmanship, 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.)
Plaintiffs have developed an unprotectible plot into an orig[703]inal play entitled to protection. The protection extends, however, only to its “details, sequence of events, and manner of expression and treatment. ’ ’ (Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 561 [90 P.2d 371].) Even if defendants have taken from the play its plot, they have taken nothing of its expression and development to which alone plaintiffs can claim a superior right.
Plaintiffs rely on a dictum in Dam v. Kirk La Shelle, 175 F. 902, 907-908 [99 C.C.A. 392, 20 Ann.Cas. 1173, 41 L.R.A.N.S. 1002], that a basic plot may be protected by copyright. What the court there described as a “plot,” however, was in fact the concrete form of plaintiff’s literary work appropriated almost verbatim by the defendant.. Any intimation that a plot apart from its development and expression in a concrete form is protectible should not have survived the decision of Shipman v. R.K.O. Radio Pictures Corp., supra, 100 F.2d 533, 536-537, 538. (See, also, Dymow v. Bolton, 11 F.2d 690, 692; Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 53-54; Christie v. Cohan, 154 F.2d 827, 828.)
The majority opinion, however, states that “the fact that a plan or theme of the plaintiffs’ story is similar to the plots of prior stories does not defeat the claim of originality within the meaning of that word for copyright purposes. ’ ’ The implication is that the plot of the play is protected by copyright if plaintiffs conceived it independently of earlier stories in which it is found. It is settled, however, that the plot of a literary work is not protectible merely because the author has conceived it independently. “We assume that the plaintiff’s play is altogether original, even to an extent that in fact it is hard to believe. We assume further that, so far as it has been anticipated by earlier plays of which she knew nothing, that fact is immaterial. Still, as we have already said, her copyright did not cover everything that might be drawn from her play; its content went to some extent into the public domain . . . Whatever may be the difficulties a priori, we have no question on which side of the line this case falls. A comedy based on conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.” (Nichols v. Universal Pictures Corp., 45 F.2d 119, 122; Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54; De Acosta v. Brown, 146 F.2d 408, 410; Echevarria v. Warner Bros. Pictures, Inc., 12 F.Supp. 632, 635; Fendler v. Morosco, 253 N.Y. 281, 287 [171 [704]N.E. 56]; MacDonald v. Du Maurier, 75 F.Supp. 655, 660; McConnor v. Kaufman, 49 F.Supp. 738, 744; Becker v. Loew’s, Inc., 133 F.2d 889, 892, cert. den. 319 U.S. 772 [63 S.Ct. 1438, 87 L.Ed. 1720]; Heywood v. Jericho Co., 193 Misc. 905 [85 N.Y.S.2d 464, 468].)
The majority opinion seeks to support the converse proposition by the cases of Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 [23 S.Ct. 298, 47 L.Ed. 460], and Fred Fisher, Inc. v. Dillingham, 298 F. 145. Those decisions, however, support the rule of the Nichols and Sheldon cases and do not enunciate a rule contrary thereto. In Bleistein v. Donaldson, supra, infringement resulted from the defendants’ identical reproduction in reduced size of plaintiff’s lithographs of circus scenes. Copying was admitted. As a defense it was alleged that plaintiff’s lithographs were picturizations of actual scenes and living persons and he was not entitled to copyright thereof. The court held that the fact that the subject of the production was in the public domain did not excuse the theft of the concrete form in which plaintiff’s original development of the subject was expressed. “It is obvious also that the plaintiff’s case is not affected by the fact, if it be one, that the pictures represent actual groups—visible things . . . that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy.” (188 U.S. 239, 249.) It is clear that Justice Holmes regarded as protectible only plaintiff’s originality of expression.* His holding that defendants were not free to copy the original expression and development of a nonproteetible theme or subject cannot be distorted to mean that others are precluded from giving the same theme a different form. One does not “copy the copy” merely by using the same subject or theme. The “whole contribution may not be protected; for the defendants were entitled to use, not only all that had gone before, but even the plaintiffs’ contribution itself, if they drew from it only the more general patterns; that is, if they kept clear of its ‘expression. ’ ” (Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54.)
[705]Since “the degree of protection afforded by the copyright is measured by what is actually copyrightable in it; that is, by degree and nature of the original work” (American Code Co. v. Bensinger, 282 F. 829, 834; Dorsey v. Old Surety Life Ins. Co., 98 F.2d 872, 873), similarity between the play and the picture not attributable to the copyrightable features of the play is irrevelant. (Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 17; Nichols v. Universal Pictures Corp., 45 F.2d 119, 121; Cain v. Universal Pictures Corp., 47 F.Supp. 1013, 1017; Affiliated Enterprises v. Gruber, 86 F.2d 958, 961; De Montijo v. Twentieth Century-Fox Film Corp., 40 F.Supp. 133, 138; Shipman v. R.K.O. Radio Pictures, Inc., 100 F.2d 533, 537; Rush v. Oursler, 39 F.2d 468, 473; Rosen v. Loew’s, Inc., 162 F.2d 785, 788; Eichel v. Marcin, 241 F. 404, 409; MacDonald v. Du Maurier, 75 F.Supp. 655, 662; Hewitt v. Coward, 41 N.Y.S.2d 498, 500; Columbia Pictures Corp v. Krasna, 65 N.Y.S.2d 67, 69; Heywood v. Jericho Co., 193 Misc. 905 [85 N.Y.S.2d 464, 468]; see dissenting opinion in Stanley v. C.B.S., ante, p. 653 [221 P.2d 73].) General similarity between two productions attributable to their use of a common plot drawn from the public domain, or similarity in incident attributable to the use of common sources of material, is not evidence of literary piracy. Unless “the two works, when compared, show such pronounced similarities of substantial portions of proteetible material, i. e., of details, sequence of events, and manner of expression and treatment, as to warrant the inference of copying,” it is error to submit the issue of copying to the jury. (Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 561 [90 P.2d 371].)
Upon this principle, the federal and New York courts have consistently reversed judgments for plaintiffs or granted motions for dismissal or for judgment on the pleadings for defendants when the only similarity between the two productions has been that attributable to the use of a common plot. In Harold Lloyd Corp. v. Witwer, 65 F.2d 1, the Ninth Circuit Court of Appeals reversed a judgment for plaintiff based on the trial court’s finding that defendant’s motion picture had been copied from plaintiff’s magazine story. Both works were based on the same plot: A university freshman of little physical ability, attempting to impress a coed with his athletic prowess becomes involved in a number of ludicrous situations that subject him to the ridicule of the student hody. Through [706]a series of improbable events, he involuntarily becomes a game-winning football hero and wins the love of the girl and the plaudits of his classmates. These similarities were held to be irrelevant, attributable only to the “use of common materials, and common sources of knowledge, open to all men.” The court declared that “the resemblances are either accidental or arising from the nature of the subject” (65 F.2d at 17) and held that the “reproduction of such non-original matter,” even though a conscious borrowing, is not actionable copying. (65 F.2d at 24.)
In Ornstein v. Paramount Productions, Inc., 9 F.Supp. 896, plaintiff’s story and defendant’s motion picture were both based on a married woman’s sacrifice of her honor to pay for her husband’s medical care. In each story, the husband accepted the aid in ignorance of its source, and upon discovery indignantly repudiated his wife. Both story and picture described the wife’s struggle against adversity until her reconciliation with her husband in the picture and her death in the story. The court dismissed plaintiff’s bill for failure to state a cause of action, holding that the acknowledged similarities lay only in a common plot in the public domain. Substantial dissimilarities in treatment and development between the two productions were held as a matter of law to preclude a finding of copying. The same result was reached in the following cases: Heywood v. Jericho Co., 193 Misc. 905 [85 N.Y.S.2d 464] (both plays dealt with the return of a Negro war hero to his native southern community, his love for a white girl, and their struggle against the bigotry, violence, and hatred of the white community); Collins v. Metro-Goldwyn Pictures Corp., 25 F.Supp. 781, 782 (both stories portrayed the life of a test pilot); London v. Biograph Co., 231 F. 696 [145 C.C.A. 582] (both stories dealt with the successful attempts of two thieves to poison each other to avoid a division of their spoils); Fendler v. Morosco, 253 N.Y. 281 [171 N.E. 56] (both plays were based on the love of a white youth for an Hawaiian girl); MacDonald v. Du Maurier, 75 F.Supp. 655 (the book “Rebecca” was alleged to have infringed a story by plaintiff concerned also with the conflict between a second wife and the spirit and memory of the first); McConnor v. Kaufman, 49 F.Supp. 738 (both plays dramatized the late Alexander Woolcott’s eccentricities and interest in unsolved murders); Columbia Pictures Corp. v. Krasna, 65 N.Y.S.2d 67 (both stories involved the writing of letters to a soldier overseas by an adolescent girl posing as her own older sister); and Cain v. Universal Pictures [707]Corp., 47 F.Supp. 1013 (alleged infringement was based on the common use of a sequence in which a storm forces the hero and heroine to take overnight refuge in a church loft; see, also, Dymow v. Bolton, 11 F.2d 690, 692; Kustoff v. Chaplin, 120 F.2d 551, 561; Lewys v. O’Neill, 49 F.2d 603, 607; Dellar v. Samuel Goldwyn, Inc., 40 F.Supp. 534, 536; Rush v. Oursler, 39 F.2d 468, 472-473; Rosen v. Loew’s, Inc., 162 F.2d 785, 788; Eichel v. Marcin, 241 F. 404, 408-409; Lowenfels v. Nathan, 2 F.Supp. 73, 80; Gropper v. Warner Bros. Pictures, Inc., 38 F.Supp. 329, 332; Affiliated Enterprises v. Gruber, 86 F.2d 958, 961; Caruthers v. R.K.O. Radio Pictures, Inc., 20 F.Supp. 906, 907; Christie v. Harris, 47 F.Supp. 39, 42, aff’d. sub. nom., Christie v. Cohan, 154 F.2d 827.)
If, however, the finding of copying is supported by evidence of similarity between two works with respect to the expression and development of their common plot in a concrete form and sequence of events marked by the first author’s craftsmanship and creative talent, a judgment for plaintiff based thereon will be affirmed, as in Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49. In that case, plaintiff’s play was based on the 1857 trial in Scotland of a young woman named Madeleine Smith, on the charge that she murdered a discarded lover to prevent his revelation of their former intimacy to her present fiancé. 11 This was the story which the plaintiffs used to build their play. As will appear they took from it but the merest skeleton, the acquittal of a wanton young woman, who to extricate herself from an amour that stood in the way of a respectable marriage, poisoned her lover. The incidents, the characters, the mis en scene, the sequence of events, were all changed; nobody disputes that the plaintiffs were entitled to their copyright. All that they took from the story they might probably have taken had it even been copyrighted.” (81 F.2d at 50.) From this “merest skeleton” plaintiffs developed an original story of sensuality and murder suggested by the events upon which it was based. Defendant’s motion picture presented not just a similar story based on the same facts (which would have been permissible even if it were suggested by plaintiff’s play), but substantially the same details, sequence of events, manner of expression and development, and often the same dialogue, that gave plaintiffs’ play its character of originality and concreteness of form. The Second Circuit Court of Appeals reversed a decree of dismissal, stating that although plaintiffs could not preclude any subsequent [708]use of the same source of material or story outline or the deliberate borrowing of their plot, they were entitled to protection against piracy of their original contribution to that plot in a concrete form. Since similarity between the two works was manifested by a parallelism of incident and detail originally developed by plaintiffs, an inference of copying was held to be reasonable. In De Acosta v. Brown, 146 F.2d 408, 410, both works were based on the life of Clara Barton, but there was similarity between them in the names of seven principal characters (of the six fictional names one accidentally misspelled name in plaintiff’s story was identically reproduced in defendant’s), in a fictional romance between Miss Barton and a young gold prospector even as to the details of its genesis and termination, and in the complete sequential development of the story outline. The Second Circuit Court of Appeals affirming a judgment for the plaintiff, emphasized that the finding of infringement was supported by evidence of similarity in expression and development and not by similarity in the plot of the two stories or in their use of historical material. (See, also, Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 561 [90 P.2d 371], and Universal Pictures Co., Inc. v. Harold Lloyd Corp., 162 F.2d 354, 360, in which judgments for the plaintiffs were held supported by evidence of the use of identical comedy sequences originally developed by the plaintiffs, not by similarities resulting from the use of the same plot.)
Admittedly, both play and picture in the present case utilize the same basic plot, the story of a paranoiac ship’s captain obsessed by his position and authority, engaged by an opponent aboard his ship, and defeated by that opponent and by his own mental collapse. If a plot apart from its expression in a concrete form were protectible, the first use of this plot would have withdrawn from all subsequent use a most fertile field for the production of stories of the sea. The captain and his opponent have long been stock sea story material. They were present in the persons of Captain Bligh and Fletcher Christian of “Mutiny on the Bounty,” of Wolf Larsen and Humphrey van Weyden of “The Sea Wolf,” and in the principals of numerous other stories of ships and the men who man them. It is immaterial, however, whether the plot common to play and picture is old or new; the only protection plaintiffs can claim under copyright law is limited to its expression and development in a concrete form. In the present ease there is no substantial evidence of similarity between the [709]play and picture with respect to the features protected by copyright. “When one attempts comparison of the two works, in those matters as to which copyright protects—that is, the spirit or soul infusing the creatures of the author’s imagination, what they desire, and how they go about achievement, the reasons for their actions, and the words in which such reasons are expressed—I can see nothing but differences.” (Frankel v. Irwin, 34 F.2d 142, 144; MacDonald v. Du Maurier, 75 F.Supp. 655, 662.)
Plaintiffs’ captain (Crawley) is an impostor, an actor who knows nothing of seamanship, who has killed the real captain to get aboard the boat and bring about the death of an enemy (Braneato) he believes has ruthlessly stifled the acting ability that he (Crawley) may now display. He exults in the power he possesses, but only because he holds it by virtue of his ability to act the part of the captain. He is obsessed by his art, not by his authority. He challenges Braneato to expose him, to demonstrate that by his consummate acting he can make others believe only what he wants them to believe. He kills only because murder is necessary to the maintenance of his pretense. He hates Braneato and attempts to drive him to suicide. When he believes he has accomplished his purpose, he takes his own life in fear and remorse. The form and development of this story, the embellishment of incident and detail, give the play the stamp of plaintiffs’ originality and entitle it to protection, but only against piracy of the protectible features.
Defendants, however, have taken from plaintiffs’ play, if anything, only that which is common property. In order to use an old ship set not then in use, they used a story outline a great deal older and more timeworn. They added to it nothing not already in the public domain; certainly they added to it no ingredient for which plaintiffs can claim protection. Their story was built on a tyrannical captain, his abuse of authority, and his eventual defeat. Their captain (Stone) is a veteran of the sea, competent and experienced. Pride in his authority has become an obsession, driving him insane. He kills only to prove his authority. He does not hate his opponent, Merriam, whose only common denominator with plaintiffs’ Braneato is his opposition to an insane captain. He does not commit suicide, but is killed to prevent the murder of Merriam. “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 [710]cut away to show similarity between a few bones.” (Dymow v. Bolton, 11 F.2d 690, 692.) Here, as in Stanley v. C.B.S., ante, p. 653 [221 P.2d 73], defendant’s motions for non-suit, directed verdict, and judgment notwithstanding the verdict raised the question whether there was substantial evidence of relevant similarity to justify the submission of the case to the jury for a determination whether that similarity was the result of copying. In denying the motions, the trial court erroneously determined that there was substantial evidence of relevant similarity. In reversing the judgment, this court would not be substituting its judgment for that of the jury on a question of fact, but would determine merely that there was insufficient evidence to support a finding of copying. (Nichols v. Universal Pictures Corp., 45 F.2d 119, 121, 122; Hewitt v. Coward, 41 N.Y.S.2d 498, 500; Dorsey v. Old Surety Life Ins. Co., 98 F.2d 872, 874; Soy Food Mills, Inc. v. Pillsbury Mills, Inc., 161 F.2d 22, 25.) I would therefore reverse the judgment.
Spence, J., concurred.
The same explanation applies to Judge Learned Hand's decision in the Fred Fisher ease, holding that defendant's identical duplication of plaintiff's original variation of a musical theme constituted copyright infringement. (298 F. at 150; see also his concurring opinion in Shipman v. R.K.O. supra.)