What Sex Tape Lawsuit Can Teach Us About Fair Use

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A over a website's of a celebrity threesome sex tape is provoking some about fair use.

Not to mention giving PBS, , and the New York Times the opportunity to talk about sex tapes.

The tape consists of Grey's Anatomy actor Eric Dane and his wife Rebecca Gayheart, as well as Kari Ann Peniche -- a former Miss United States Teen beauty queen who was dethroned after posing for Playboy, went on a reality show to be treated for sex addiction, and reportedly is now a Hollywood madam -- engaged in various activities. The original tape is 12 minutes long; the website posted a four-minute excerpt with censorship covering various portions of the Grey's Anatomy star's, uh, anatomy.

"Hollywood sex tapes making their way to the Internet are nothing new," noted the PBS blog, written by Rob Arcamona, a second-year law student at The George Washington University Law School. Neither are lawsuits, though as it notes few cases go to trial. What is different about this lawsuit is that rather than using the usual criteria such as invasion of privacy or defamation of character, they claim that Gawker's publication of the video violates their copyright -- which they reportedly registered two days after the tape was posted online -- and filed a $1 million lawsuit.

Arcamona notes that Gawker is considering its publication as "fair use" because it is newsworthy. Factors under consideration, he said, are whether Dane and Gayheart intended to publish the tape at some point -- because the copyright holder has the right to determine the first time a work is published; whether four minutes of a 12-minute tape is longer than would constitute fair use; and whether any of the potential customers of such a video by Dane and Gayheart would still be interested in buying it after Gawker's publication.

In any event, it will be interesting to see how well this legal maneuver succeeds.

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Useful legal framing that follows ’s post: U.S. fair use is not a single rule but a fact-specific balancing test made from four statutory factors — purpose/character, nature of the work, amount/substantiality used, and market effect. Courts weigh those factors together rather than applying a fixed formula. (law.cornell.edu)

A key theme for cases like this is whether the publisher’s use is “transformative” — that is, whether it adds new expression, meaning, or message. The Supreme Court made that concept central to modern fair-use analysis and explained that commercial motive alone does not decide the issue; transformative purpose can reduce the weight of other negative factors. That interaction is why ’s point about publicity and money matters: commercial motives and publicity can cut both ways in the first and fourth factors. (law.cornell.edu)

Practical litigation implications: remedies and timing matter. Registration timing affects what remedies a rights-holder can seek (statutory damages and attorneys’ fees are constrained by the registration rules), and the Supreme Court has confirmed that a registration must be completed before a federal suit is filed except in narrow exceptions. For faster removal of material online, the DMCA notice-and-takedown system is the immediate administrative tool most rights-holders use; the Copyright Office explains the required elements for valid takedowns and counter-notices. (law.cornell.edu)

Quick, practical checklists (not legal advice):

  • For publishers: document the editorial purpose; add commentary or reporting that shows transformation; use only the excerpt needed; redact identifying or intimate details when possible; keep logs showing editorial decisions and timestamps. (law.cornell.edu)

  • For rights-holders: register the work promptly; preserve original files and server logs; send a properly formatted DMCA takedown to the host; consider privacy or state remedies for nonconsensual sharing and consult counsel about civil/criminal options. (copyright.gov)

Fair-use outcomes are unpredictable. These pointers show what courts look for and what each side can do right away.

Member Avatar for MktgRob
MktgRob 7 Nearly a Posting Virtuoso

The other obvious lesson here is that the twin needs of publicity and money are the ulterior motives of every B and C level actor like Dane and Gayheart when a sex tape, OOPS, goes public.

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