Dane's Claims Against Gawker Look Flimsy
Gawker published a homemade videotape of Grey's Anatomy star Eric Dane and his wife (along with one other person). Dane and his wife sued Gawker for damages. Gawker declined to remove the tape and is defending against Dane's lawsuit. MediaShift raises the issue of whether Gawker is likely to be able to take advantage of fair use in publishing the tape. Rob Arcamona walks through the fair use factors and gives "a three point spread," after concluding that Dane has valid claims, and Gawker has a "formidable" defense.
Fair use is fact
-specific and it's notoriously difficult to predict whether a court will ultimately conclude that someone is entitled to the fair use defense. I'm somewhat surprised that Gawker is taking a hard line on the fair use issue. Maybe they are taking a stand in order to show everyone that the disappearance of so-called "old media" entities will not leave institutional First Amendment interests hanging? They could have taken down the tape (although they published it after receiving a demand from Dane's lawyers) after-the-fact, and likely come to some sort of easy settlement with Dane and company. However, aggressively defending the case, as they seem to be doing, only escalates the stakes. (Good for them for sticking to their guns.)
Dane's claims are somewhat curious. Celebrities have been fairly successful in preventing publication of these types of tapes (see, e.g., Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823 (C.D. Cal. 1998)). (News organizations successfully asserted a fair use defense as to excerpts of the tape, but the court determined that full blown commercial exploitation of the tape by IEG was likely to infringe.) That said, given the snippets of the tape published by Gawker, it can probably assert a colorable fair use defense. But what is odd about Dane's claims is that he is only asserting copyright claims, and Gawker's publication pre-dated Dane's registration of the copyright in the tape. In other words, Dane should only be entitled to actual damages, or so Gawker argues pretty persuasively in a motion to strike [pdf] Dane's request for statutory damages. This puts Dane in an awkward spot. If the court agrees with Gawker and Dane ends up with only actual damages I'm not sure what Dane will end up doing. Some cases define actual damages as lost licensing revenues, or damage to the owner's ability to license the work. Gawker can argue that its own commercial exploitation of the tape did not impair the market for the tape since Dane had no intent to commercialize it. End result: Dane is awarded nominal damages and doesn't get his fees either. Ironically, Gawker's publisher Nick Denton invoked the words of Dane's own lawyer when commenting on the lawsuit:
In these circumstances, celebrities also bring privacy (and personality rights) based claims, but Dane didn't assert any such claims. (Access a copy of the complaint here: [pdf].)
On a related note, a funner battle would be if someone decided to run the photos and videos described here.
Fair use is fact
-specific and it's notoriously difficult to predict whether a court will ultimately conclude that someone is entitled to the fair use defense. I'm somewhat surprised that Gawker is taking a hard line on the fair use issue. Maybe they are taking a stand in order to show everyone that the disappearance of so-called "old media" entities will not leave institutional First Amendment interests hanging? They could have taken down the tape (although they published it after receiving a demand from Dane's lawyers) after-the-fact, and likely come to some sort of easy settlement with Dane and company. However, aggressively defending the case, as they seem to be doing, only escalates the stakes. (Good for them for sticking to their guns.)Dane's claims are somewhat curious. Celebrities have been fairly successful in preventing publication of these types of tapes (see, e.g., Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823 (C.D. Cal. 1998)). (News organizations successfully asserted a fair use defense as to excerpts of the tape, but the court determined that full blown commercial exploitation of the tape by IEG was likely to infringe.) That said, given the snippets of the tape published by Gawker, it can probably assert a colorable fair use defense. But what is odd about Dane's claims is that he is only asserting copyright claims, and Gawker's publication pre-dated Dane's registration of the copyright in the tape. In other words, Dane should only be entitled to actual damages, or so Gawker argues pretty persuasively in a motion to strike [pdf] Dane's request for statutory damages. This puts Dane in an awkward spot. If the court agrees with Gawker and Dane ends up with only actual damages I'm not sure what Dane will end up doing. Some cases define actual damages as lost licensing revenues, or damage to the owner's ability to license the work. Gawker can argue that its own commercial exploitation of the tape did not impair the market for the tape since Dane had no intent to commercialize it. End result: Dane is awarded nominal damages and doesn't get his fees either. Ironically, Gawker's publisher Nick Denton invoked the words of Dane's own lawyer when commenting on the lawsuit:
Coverage at THR, Esq. here and here.To quote the great Marty Singer - Eric Dane's lawyer – 'If you don't want a sex tape on the Internet, don't make one!'
In these circumstances, celebrities also bring privacy (and personality rights) based claims, but Dane didn't assert any such claims. (Access a copy of the complaint here: [pdf].)
On a related note, a funner battle would be if someone decided to run the photos and videos described here.
I don't think Prejean's videos are likely to hit the Internet. I believe she was 17 when at least one of them was made, making them child porn and therefore toxic to all potential publishers and recipients. Eric.
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I haven't been following the story too closely, but there seems to be some dispute about her age. Either way, I agree w/you, this makes the content much less likely to be commercially exploited.
http://www.radaronline.com/exclusives/2009/11/exclusive-carrie-prejean-was-over-18-when-nude-photos-taken
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