A lawsuit over a website's publication of a celebrity threesome sex tape is provoking some thoughtful discussion about fair use.
Not to mention giving PBS, NPR, 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 Gawker.com 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.
