and promotional flyers to pass out to the general public. At least some of these handouts and flyers included images of the characters. “Exploitation books” associated with The Wizard of Oz and Gone with the Wind allowed theaters to select promotional giveaway or sale items for the public, ranging from color-tinted publicity photographs to matchbooks to spare-tire covers. No evidence suggests that theaters were expected to recover these items from the public and return or destroy them. Adams also conceded that in addition to movie posters and lobby cards for the theaters’ own premises, theaters could obtain movie posters expressly constructed for posting on telephone poles throughout the theater’s local area. When asked if these movie posters generally were returned or destroyed, Adams responded, “I don’t think so but I don’t know.” We also note that Loew’s initially took steps to obtain a federally registered copyright in some of the still photographs used in publicity materials for The Wizard of Oz, suggesting that Loew’s did not expect the National Screen Agreement to preserve its copyrights in such materials.
As an additional matter, publicity material images for the films were distributed directly to the general public through newspapers and magazines. As a leading treatise states:
An issue of recurring application is publicity photos for motion pictures from the 1920’s through 1970’s. The films themselves from that era were routinely protected as validly noticed and registered works; but much less care was typically exercised during production and in the publicity office. Often, photos were taken on the set depicting the same stars, wearing the same costumes, appearing in the same scenery, that would later appear in the photoplay, but the photographs were sent off to newspapers before the film’s release, in order to generate a buzz about its opening.
1-4 Nimmer on Copyright § 4.13[A][3].
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