Given the undisputed evidence regarding handouts, flyers, giveaway and sale items, and movie posters for telephone poles distributed under the National Screen Agreement (in apparent contravention of its “return or destroy” provisions), as well as the widespread distribution of many publicity images to newspapers and magazines, the only possible “implications of [Loew’s] outward actions to the reasonable outsider” is that Loew’s intended to abandon the right to control reproduction, distribution, and sale of the images in the publicity materials. See Nucor Corp., 476 F.2d at 390 n.7. In terms of the Ninth Circuit test, the publicity materials simply were not distributed to a definitely selected class of persons without the right of reproduction, distribution, or sale. See White, 193 F.2d at 746-47. To the contrary, the purpose of the distribution of all of these publicity materials was to reach as much of the public as possible. The studio itself happily estimated at the time that over 90 million people would see the advertising campaign for The Wizard of Oz. In practical terms, “courts have hesitated to find general publication if to do so would divest the common law right to profit from one’s own work,” Burke, 598 F.2d at 691, but here it appears Loew’s viewed the publicity materials as a tool to maximize profit from the copyrighted films, not as an independent source of revenue. Therefore, we conclude that the publicity materials for The Wizard of Oz and Gone with the Wind, as well as for the Tom & Jerry short films, are in the public domain.[1]
- ↑ Warner Bros. also argued in district court that the publicity materials are protected by the film copyrights as derivative works of the films. Under the 1909 Copyright Act, what came to be known as “derivative works” were defined as “[c]ompilations or abridgements, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain or of copyrighted works . . . .” 17 U.S.C. § 7 (repealed effective 1978); see Shoptalk, Ltd. v. Concorde-New Horizons Corp., 168 F.3d 586, 591 (2d Cir. 1999). Here, it is undisputed that the publicity materials were not based on film footage used in the copyrighted films, but rather on still photographs and artists’ renderings created independently from the film footage. Because they were not adapted or otherwise created from the films, the publicity materials cannot be “derivative works” of the films.
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