Here, the record includes publicity photographs for The Wizard of Oz that appeared in McCall’s magazine, The Saturday Evening Post, the St. Louis Post-Dispatch, and the Chicago Herald and Examiner before the film was released. It also includes publicity photographs for Gone with the Wind that appeared in the Atlanta Constitution and the Atlanta Journal, and other published material indicating that Gone with the Wind publicity photographs appeared in several magazines in the United States before the film was released. Obviously, in each case, the rights-holder granted the right of “reproduction, distribution [and] sale” of the subject publicity photographs to each respective newspaper and magazine. White, 193 F.2d at 747. At least one court has held that distribution of promotional photographs to theaters, even under an effective condition that the photographs be returned, is not sufficient to demonstrate a limited publication where the photographs are also distributed for use by newspapers and magazines. See Milton H. Greene Archives, Inc. v. BPI Commc’ns, Inc., 378 F. Supp. 2d 1189, 1198-99 (C.D. Cal. 2005), aff’d, 320 F. App’x 572 (9th Cir. 2009) (unpublished per curiam).[1]
- ↑ Warner Bros. argues that the distribution to newspapers and magazines is irrelevant in this case because AVELA extracts images only from restored movie posters and lobby cards, not from newspapers and magazines. Experts for both parties agreed, however, that the materials provided to theaters, on the one hand, and the materials provided to newspapers and magazines, on the other, were drawn from a single, comprehensive set of publicity images created for the sole purpose of promoting each film. Both avenues of distribution would be relevant to a reasonable outsider trying to discern Loew’s intent to place limits on reproduction, distribution, and sale when it put these publicity materials in others’ hands without copyright notice. See Nucor Corp., 476 F.2d at 390 n.7; Milton H. Greene Archives, 320 F. App’x at 573 (affirming, where publicity materials were distributed variously “to magazines, newspapers, and local theaters,” that a general publication still occurred with respect to the pictures that “were not used [by the recipients] as broadly as the others or at all” because the materials were made available with no limits on diffusion, reproduction, or distribution).
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