## Facts

- Milton H. Greene took photographs of Marilyn Monroe in the mid-1950s.
- Greene authorized the photographs’ use for motion picture publicity, including printing in campaign books distributed to the press and theaters and reproduction in newspapers and magazines.
- None of the seven photographs at issue was published in the 1950s with a copyright notice in Greene’s name.
- One campaign-book copy bore restrictive language indicating licensing to a theater only for exhibition-related use, but other authorized uses involved broad press dissemination.
- Decades later, Joshua Greene obtained copyright registration certificates for the seven photographs (in 1994 and 2003) and assigned them to Milton H. Greene Archives, Inc. (MGA).
- BPI Communications, Inc. (BPI) published *Blonde Heat*, reproducing seven Monroe photographs that MGA claimed to own.
- BPI obtained the photographs from Photofest, Inc., a licensing entity; MGA had separately settled litigation with Photofest in 2003 with releases that BPI argued also protected Photofest’s customers.

## Issues

1. Whether MGA’s settlement release with Photofest barred MGA’s infringement claims against BPI as a Photofest customer.
2. Whether the photographs entered the public domain because they were generally published in the 1950s without a copyright notice under the 1909 Act (as opposed to being only limitedly published).
3. Whether the late registrations’ usual prima facie presumption of validity was rebutted by evidence of general publication without notice.
4. Whether BPI’s reproduction of the photographs in *Blonde Heat* constituted actionable copyright infringement.

## Decision

- BPI’s motion for summary judgment on waiver/release was denied.
- MGA’s motion for summary judgment on infringement was denied.
- BPI’s motion for summary judgment on infringement was granted.
- MGA’s motion for summary judgment on BPI’s affirmative defenses was denied as moot.

## Legal Principles

- Under the 1909 Act, a general publication of a work without a proper copyright notice dedicates the work to the public domain.
- Limited publication is narrowly defined as distribution to a select group for a limited purpose without rights of further reproduction or dissemination.
- Authorized dissemination to the press and for newspaper/magazine reproduction for publicity purposes supports a finding of general publication, even if some copies include restrictive language.
- A registration certificate is generally prima facie evidence of copyright validity, but that presumption can be rebutted, including by proof that the work entered the public domain through general publication without notice.
- Later registration does not restore exclusivity in a work that has already entered the public domain.
- Settlement releases asserted to protect nonparties may not support summary judgment where intended third-party beneficiary status is not established as a matter of law.

## Conclusion

The court rejected BPI’s waiver theory based on MGA’s Photofest settlement but held the photographs were generally published without notice in the 1950s and therefore entered the public domain, defeating MGA’s infringement claim and entitling BPI to summary judgment.


Milton H. Greene Archives, Inc. v. BPI Commc’ns, Inc., 378 F. Supp. 2d 1189 (C.D. Cal. 2005)