ALTIMARI, CIRCUIT JUDGE:

In the 1960s Bill Cosby became the first black entertainer to star in a dramatic network series, "I Spy". In a 1965 interview Cosby disclosed that his ambition was to produce a situation comedy featuring black actors. "My series would take place in a middle-income Negro neighborhood. People who really don’t know negroes would find on this show that they’re just like everyone else."

In 1980 Hwesu S. Murray, an employee of NBC Television approached NBC with an idea for a future television series. He was invited to submit his proposal in writing. He submitted five proposals, one of which was entitled "Father’s Day." On submission he notified NBC that if they used any of the proposals he expected to be named executive producer and to receive compensation. He was asked to flesh out "Father’s Day" which he did. The proposal was for a half-hour situation comedy to star Bill Cosby and to focus on the family life of a Black American family. NBC rejected the idea on November 21, 1980. Four years later The Cosby Show premiered on NBC staring Bill Cosby about everyday life in an upper middle-class black family.

Murray immediately wrote NBC claiming The Cosby Show was derived from "Father’s Day". NBC responded that the show was an outgrowth of Bill Cosby’s humor and was produced by Carsey-Werner Co., an independent production company. The district court applied New York law as announced in Downey v. General Foods Corp., 286 N.E.2d 257 (1972) "[l]ack of novelty in an idea is fatal to any cause of action for its unlawful use." For purposes of summary judgment it assumed the defendants had used plaintiff’s idea in the development of The Cosby Show. The trial court found the idea not novel because it "merely combined two ideas which had been circulating in the industry for a number of years -- namely, the family situation comedy, which was a standard formula, and the casting of black actors in nonsterotypical roles." Defendant’s motion for summary judgment was granted..

As the district court recognized, the dispositive issue in this case is whether plaintiff’s idea is entitled to legal protection. Plaintiff points to "unique" -- "even revolutionary" -- aspects of his "Father’s Day" proposal that he claims demonstrate "genuine novelty and invention," see Educational Sales Programs, Inc. v. Dreyfus Corp., 317 N.Y.S.2d 840, 844 (Sup.Ct. N.Y.Cty. 1970), which preclude the entry of summary judgment against him. Specifically, plaintiff contends that his idea suggesting the nonsterotypical portrayal of black Americans on television is legally protectible because its represents a real break-through. As he stated in his affidavit in opposition to defendants’ motions,

[w]hen I created "Father’s Day", I had in mind ... a show that ... would portray a Black family as it had never been shown before on television ... I also ... desire[d] to produce a show with strong and positive role models for the Black community, and to make a statement regarding the love and integrity of the Black family to the world. I think every Black person in this country knows there has been a need for this, and that never before on television had there been a portrayal of a Black family as I created it for "Father’s Day."

We certainly do not dispute the fact that the portrayal of a nonstereotypical black family on television was indeed a breakthrough. Nevertheless, that breakthrough represents the achievement of what many black Americans, including Bill Cosby and plaintiff himself, have recognized for many years -- namely the need for a more positive, fair and realistic portrayal of blacks on television. While NBC’s decision to broadcast The Cosby Show unquestionably was innovative in the sense that an intact, nonstereotypical black family had never been portrayed on television before, the mere fact that such a decision had not been made before does not necessarily mean that the idea for the program is itself novel.

Consequently, we do not agree with appellant’s contention that the nonstereotypical portrayal of a black middle-class family in a situation comedy is novel because

[t]o argue otherwise would be the equivalent of arguing that since there had always been baseball, and blacks in baseball, there was nothing new about Jackie Robinson playing in the major leagues -- or that since there had always been schools in Little Rock, Arkansas, and blacks in schools, there was nothing new about integrating schools in Little Rock.

We recognize of course that even novel and original ideas to a greater or lesser extent combine elements that are themselves not novel. Originality does not exist in a vacuum. Nevertheless, where, as here, an idea consists in essence of nothing more than a variation on a basic theme -- in this case, the family situation comedy -- novelty cannot be found to exist. The addition to this basic theme of the portrayal of blacks in nonstereotypical roles does not alter our conclusion, especially in view of the fact that Bill Cosby previously had expressed a desire to do a situation comedy about a black family and that, as the district court found, Cosby’s entire career has been a reflection of the positive portrayal of blacks and the black family on television.

Appellant would have us believe that by interpreting New York law as we do, we are in effect condoning the theft of ideas. On the contrary, ideas that reflect "genuine novelty and invention" are fully protected against unauthorized use. Educational Sales Programs, 317 N.Y.S.2d at 844. But those ideas that are not novel "are in the public domain and may freely be used by anyone with impunity." Ed Graham Productions, Inc. v. National Broadcasting Co., 347 N.Y.S.2d 766, 769 (Sup.Ct. N.Y.Cty. 1973). Since such non-novel ideas are not protectible as property, they cannot be stolen. In assessing whether an idea is in the public domain, the central issue is the uniqueness of the creation. Murray insists that there is at least a question of fact as to the novelty of "Father’s Day" because The Cosby Show is indisputably unique. In support of this contention, plaintiff points to the fact that NBC contracted with Carsey-Werner for the right of NBC to broadcast The Cosby Show. The contract apparently was executed by the parties before there had been any written development of the proposed series. The "program idea" for The Cosby Show, however, was described in the contract as "unique, intellectual property." According to plaintiff, the inescapable conclusion is that the idea -- whether it be "Father’s Day" or The Cosby Show -- could not possibly have been in the public domain if NBC expressly contracted to purchase it from Carsey-Werner.

We disagree. The Carsey-Werner contract contemplates a fully-produced television series. The contract refers to, inter alia, the program format, titles, set designs, theme music, stories, scripts, and art work as well as to the "program idea." Taken together, these elements no doubt would be considered original and therefore protectible as property. On the other hand, we think it equally apparent that the mere idea for a situation comedy about a nonstereotypical black family -- whether that idea is in the hands of Murray, Carsey-Werner, NBC, or anyone else -- is not novel and thus may be used with impunity.

Finally, as an alternative attack on the propriety of the district court’s order granting summary judgment, plaintiff posits that even if his idea was not novel as a matter of law, summary judgment still was inappropriate because his proposal was solicited by defendants and submitted to them in confidence. In this regard, Murray relies on Cole v. Phillips H. Lord, Inc., 28 N.Y.S.2d 404 (1st Dep’t 1941). Murray contends that Cole stands for the proposition that when an idea is protected by an agreement or a confidential relationship, a cause of action arises for unauthorized use of that idea irrespective of the novelty of the subject matter of the contract. Plaintiff’s reliance on Cole is misplaced in light of subsequent cases, particularly the New York Court of Appeals decision in Downey v. General Foods Corp., 286 N.E.2d 257 (N.Y.Ct. App. 1972).

Consequently, we find that New York law requires that an idea be original or novel in order for it to be protected as property. Since, as has already been shown, plaintiffs proposal for "Father’s Day" was lacking in novelty and originality, we conclude that the district court correctly granted defendants’ motion for summary judgment.
 

Having determined the plaintiff’s idea is not property under New York law, we turn now to a consideration of the district court’s dismissal of the various claims in the complaint.

A. State law claims

"[W]hen one submits an idea to another, no promise to pay for its use may be implied, and no asserted agreement enforced, if the elements of novelty and originality are absent ..." Downey, 286 N.E.2d at 259. As the district court recognized, non-novel ideas do not constitute property. As a result, there can be no cause of action for unauthorized use of Murray’s proposal since it was not unlawful for defendants to use a non-novel idea. We conclude therefore that the district court properly dismissed plaintiff’s state law claims for breach of implied contract, misappropriation, conversion, and unjust enrichment.

Lastly, we find that Judge Cederbaum correctly determined that plaintiff’s claim for false designation of origin, see Lanham Act ' 43(a), 15 U.S.C. ' 1125(a), regarding the credits to The Cosby Show, cannot survive in light of the court’s granting of summary judgment against plaintiff on the issue of novelty. Even assuming defendants used plaintiff’s idea, NBC’s failure to designate Murray as the creator of The Cosby Show does not mean that the credits to the program are false since ideas in the public domain may be used with impunity and thus do not require attribution.

Affirmed.

GEORGE C. PRATT, CIRCUIT JUDGE, dissenting:

Today this court holds that the idea underlying what may well be the most successful situation comedy in television history was, in 1980, so unoriginal and so entrenched in the public domain that, as a matter of law, it did not constitute intellectual property protected under New York law. Because I am convinced that the novelty issue in this case presents a factual question subject to further discovery and ultimate scrutiny by a trier of fact, I respectfully dissent.

Novelty, by its very definition, is highly subjective. As fashion, advertising, and television and radio production can attest, what is novel today may not have been novel 15 years ago, and what is commonplace today may well be novel 15 years hence. In this instance, where Cosby expressed the concept almost a decade and a half before Murray submitted his proposal, where it was Murray’s idea that NBC actually used, where there is no evidence indicating NBC knew anything of the program idea until Murray submitted it, ... and where substantial conflicting evidence exists as to the "novelty" of the idea under New York law, there seems to be a least a triable issue.

The majority’s decision prematurely denies Murray a fair opportunity to establish his right to participate in the enormous wealth generated by The Cosby Show. Accordingly, I would reverse the district court judgment and remand the case for further consideration.

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GOODWIN, CURCUIT JUDGE.

Plaintiff Mark Landsberg wrote a book on strategy for winning at the Scrabble board game. He contacted defendant Selchow & Righter Co. (S & R), the owner of the Scrabble trademark, to request permission to use the mark. In response, S & R requested a copy of the manuscript, which Landsberg provided. After prolonged negotiations between them regarding the possible publication by S & R of the manuscript were broken off, S & R brought out its own Scrabble strategy book. Landsberg sued S & R, its subsidiary Scrabble Crossword Game Players, Inc., Crown Publishers, Inc., the publishers of S & R’s book, and several individual defendants in state court for copyright infringement and breach of contract. Defendants successfully removed under 28 U.S.C. ' 1441(a) (1982). After a bench trial, the district court found that: S & R’s book was based upon Landsberg’s manuscript; the two works were substantially similar; defendant S & R had copied both the ideas and the form of expression of Landsberg’s work; and that defendants had infringed Landsberg’s rights. Landsberg I, reversed the judgment for Landsberg on his copyright infringement claim because the S & R book lacked the degree of similarity required for infringement of a nonfiction work. Landsberg I, 736 F.2d at 489. We remanded for further proceedings on whether "circumstances and conduct manifesting the terms and existence of a contract precede[d] or attend[ed] disclosure of the idea." Id. Upon remand, the district court held a status conference and the parties submitted additional briefs. The court then made supplemental findings of fact and conclusions of law and entered judgment for plaintiff on his contract claim. Defendants now appeal from this judgment. We affirm.

Defendants’ principal argument on appeal is that the idea which is the subject of the alleged implied-in-fact contract is that of a book about Scrabble strategy, and that the idea was disclosed in Landsberg’s first letter to S & R. This argument treats the trial testimony regarding the distinction between ideas and their expression, which was central to the copyright claim, as determinative of the subject of the implied contract. The contract claim turns not upon the existence of a protectible property interest, however, but upon the implied promise to pay the reasonable value of the material disclosed. See Donahue v. Ziv Television Program, Inc., 54 Cal.Rptr. 130, 140 (1996). At issue is thus whether an implied contact was made, and whether defendants’ use of the manuscript violated its terms. Landsberg’s proprietary interest in the form of expression is irrelevant.

California law allows for recovery for the breach of an implied-in-fact contract when the recipient of a valuable idea accepts the information knowing that compensation is expected, and subsequently uses the idea without paying for it. Densy v. Wilder, 299 P.2d 257, 267 (Cal. 1956). If disclosure occurs before it is known that compensation is a condition of its use, however, no contract will be implied. Id. at 739, 299 P.2d 270. Thus, if Landsberg unconditionally disclosed his manuscript before informing S & R that he expected compensation for its uses, his contract claim fails under California law.

In its supplemental findings, the district court found that Landsberg’s initial disclosure of his manuscript was confidential and for the limited purpose of obtaining approval for the use of the Scrabble mark, and that given his expressed intention to exploit his manuscript commercial, defendants’ use of any portion of it was conditioned on payment. It found, further, that the negotiations for the use of the manuscript by defendants show that Landsberg’s belief that they would not use his manuscript without paying him for it was reasonable.

Defendants cite nothing in the record to suggest that these findings are incorrect. Instead, they rely upon their theory that the idea was simply that of a Scrabble strategy book, and that plaintiff blurted out that idea. This argument does not establish that the trial court was wrong. Landsberg disclosed the contents of his manuscript for a limited purpose that was made known to defendants. Defendants negotiated with him only long enough to produce a book based on his work without compensating him for his efforts. The district court’s supplemental findings were not clearly erroneous.

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If a corporation requires anyone submitting an idea for consideration to accept in writing the following eight conditions is it adequately protected against additional liability? Are all the conditions necessary?

1. An idea must be submitted by its originator or his or her duly appointed attorney or agent.

2. An idea will be considered only on the understanding that its submission and the submission of any related material is not in confidence. No confidential or other unusual relationship may be established by or implied from the submission or our consideration of the idea or related material.

3. The corporation cannot and does not agree that the idea or any related material submitted will be kept a secret.

4. The corporation will give an idea only such consideration as it believes the idea merits, and no obligation is assumed other than to notify the submitter as to whether or not the company is interested in negotiating further for rights to the idea.

5. Receipt, or consideration of, or subsequent negotiation or offer with respect to any idea will be without prejudice to us. This includes, without limitation, our rights to contest the validity of any existing or future patent on the idea. Furthermore, and also without limitation, receipt or consideration of, or negotiation or offer on an idea, shall not be deemed an admission of the novelty or patentability of the idea, or of priority or originality on the part of the submitter or any other person.

6. We cannot consider any idea on condition that we shall return any material submitted.

7. If your idea is patented, and of interest to us, negotiations may be entered into. In the event that no agreement is concluded the submitter shall rely solely upon such rights as he may have under United States Patent Laws.

8. Where your idea is not patented, in the event the idea proves new, and the corporation uses it, the company agrees to pay and you agree to accept the sum of One Thousand Dollars ($1,000.00) for all rights to such idea. However, if any such unpatented idea shall later be covered by a patent, the foregoing provisions of this paragraph shall not apply to any rights under the patent, and the submitter shall thereafter rely solely upon such rights as he may have under United States Patent Laws.

See Sylvania Electric Prods., Inc. v. Brainerd, 166 U.S.P.Q. 387 (D.C.Mass. 1970).