We all know the details by now:
Grey’s Anatomy’s McSteamy, his wife, and what is apparently a very good friend made a sexless sex tape. Gawker posted the video and McSteamy and wife (hereinafter referred to collectively as “McSteamy”) sue.
What better way to spend a Friday afternoon than to play armchair judge and pick a winner? (I’m an attorney, after all…)
McSteamy was crafty – they did not sue under total loser claims like misappropriation of likeness or invasion of privacy because such torts would fall prey to the First Amendment due to their newsworthiness (ah, the low newsworthy bar)!
They also did not sue for any theft of property torts because Gawker – the (relatively) deep pocket defendant – wasn’t the one rummaging through their trash, or wherever it is one keeps naked hottub videos.
Instead, they sued under federal copyright law, which is basically their only hope.
The complaint says McSteamy properly registered themselves with the Copyright Office as owners and authors of the video.
The Smoking Gun pulled the proof of copyright registration, which shows McSteamy officially became the authors on August 19, two days after Gawker initially aired a portion of the video. So McSteamy is out of luck for damages for those two days.
But the video has been available since then, and linked to countless times since they filed the lawsuit. McSteamy owns the copyright, and Gawker has been playing it without their permission. Gawker will assert that ever-so-fantastic defence of Fair Use and the battle will begin.
As with all legal issues, the court will look at all sorts of factors required for “fair use,” most of which weigh in Gawker’s favour: the story is “news” and Gawker’s use was “transformative” – it changed the tape from private to, well, not.
So the suit will come down to whether Gawker took away McSteamy’s right to market the video. If Gawker had stuck with its initial posts – which played only a couple of clips – they’d probably be home free. But they made the entire video available on Fleshbot, and since no one is likely to pay for a sexless sex tape they can see for free, McSteamy can easily say the market value of their no-sex sex tape was destroyed.
Following precedent in no less a case than the Bret Michaels and Pamela Anderson losing sex-tape battles, Gawker will say that they are not in competition with McSteamy in their use of the tape. They are using it for news and McSteamy had no intention of selling it. Gawker did not hurt the market because McSteamy, prudes that they are, were not going to sell the tape.
But the same case has a window of light for McSteamy.
Pamela and Bret’s case involved a few short video excerpts on Hard Copy. The Court – the same court where the Gawker case is filed – noted that full Internet videos of the piece could destroy the marketable parts of the tape.
So that is what the fight will come down to.
We think a judge would say McSteamy only registered for a copyright after the video went public, thus admitting, again, they were not ever going to use it for commercial purposes. Gawker took nothing away from McSteamy, so, it’s fair use and Gawker wins!
Of course, lawsuit or not, Gawker already has won. They have three million plus no-sex sex-tape views while McSteamy has nothing but the embarrassment that comes with seeing yourself naked on the Internet.
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