Page:Warner Bros. Entertainment v. X One X Productions (8th Cir. 2011).pdf/11

 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Inc. v. BPI Commc’ns, Inc., 378 F. Supp. 2d 1189, 1198-99 (C.D. Cal. 2005), aff’d, 320 F. App’x 572 (9th Cir. 2009) (unpublished per curiam). -11-