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

 Copyright Act. See Brown v. Tabb, 714 F.2d 1088, 1090-91 (11th Cir. 1983). Under the 1909 Copyright Act, one who created an artistic work held a common law copyright in that work until “publication” occurred. ''See Burke v. Nat’l Broad. Co., Inc.'', 598 F.2d 688, 691 & n.2 (1st Cir. 1979). If the publication complied with the notice requirements of the 1909 Copyright Act, the common law copyright was replaced with a federal statutory copyright, but a publication without the prescribed notice resulted in the forfeiture of any copyright. Data Cash Sys., Inc. v. JS&A Grp., Inc., 628 F.2d 1038, 1042 (7th Cir.1980). In other words, the general rule under the 1909 Copyright Act is that a work published in the United States without the statutorily required copyright notice fell into the public domain, “precluding forever any subsequent copyright protection of the published work.” Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162, 1165-66 (9th Cir. 1996).

Warner Bros. concedes that the publicity materials now copied by AVELA were distributed to theaters without the statutorily required notice, but it nevertheless contends that these materials were not injected into the public domain because their distribution was a “limited publication.” As distinguished from a “general publication” that results in injection into the public domain, a limited publication is one that occurs “under conditions which exclude the presumption that [the work] was intended to be dedicated to the public.” ''Am. Tobacco Co. v. Werckmeister, 207 U.S. 284, 299 (1907), superseded by statute, Copyright Act of 1976, as recognized in Harper & Row Publishers, Inc. v. Nation Enters.'', 471 U.S. 539 (1985). Courts developed the doctrine of limited publication “[t]o lessen the sometimes harsh effect of the rule that publication destroyed common law rights.” Brown, 714 F.2d at 1091. Warner Bros. contends that the conditions for a limited publication were satisfied for the movie posters and lobby cards for The Wizard of Oz and Gone with the Wind because those materials were not distributed directly to the general public, but rather were leased solely to theaters under an agreement (the “National Screen Agreement”) -8-