Page:Warner Bros. Entertainment v. X One X Productions (8th Cir. 2011).pdf/9

 that required the materials to be returned or destroyed after the theater stopped running the subject film.

We have held that a publication is general, rather than limited, if the rightsholder demonstrated an express or implied intent to abandon his right to control distribution and reproduction of his work, as determined objectively from “the implications of his outward actions to the reasonable outsider.” Nucor Corp. v. Tenn. Forging Steel Serv., Inc., 476 F.2d 386, 390 n.7 (8th Cir. 1973) (quoting Edgar H. Wood Assocs., Inc. v. Skene, 197 N.E.2d 886, 892 (Mass. 1964)). There is a dearth of Eighth Circuit case law applying this test, and the parties argue this issue under a framework developed by the Ninth Circuit and adopted by several other circuits defining a limited publication as a distribution (1) to a definitely selected class of persons, (2) for a limited purpose, (3) without the right of reproduction, distribution, or sale. See White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir.1952); see also Brown, 714 F.2d at 1091; Data Cash Sys., 628 F.2d at 1042; Burke, 598 F.2d at 692; ''Am. Visuals Corp. v. Holland, 239 F.2d 740, 744 (2d Cir. 1956); 1-4 Melville B. & David Nimmer, Nimmer on Copyright'' § 4.13 (hereinafter “Nimmer on Copyright”). We agree that this test may help to focus the analysis.

Based on the record, any reasonable jury would have to conclude that the “return or destroy” provisions of the National Screen Agreement did not effectively preclude redistribution or sale of the images in the publicity materials made available to theaters for The Wizard of Oz and Gone with the Wind. For example, Leith Adams, Warner Bros.’s expert, conceded that theaters could “buy by the thousands” handouts  -9-