In the interest of full disclosure, this blog post involves a celebrity sex tape.
Now that I have your rapt attention, let's undress this mess and get to the naked issue here - fair use of material protected by the Copyright Act. Why is that important in a sex-tape scandal? First of all, it is important because these are the cases people go to law school to read. No one ever minds an occasional juicy fact pattern to break up the monotony. Secondly, the "filmmakers" are seeking retribution from Gawker based on violation of copyright. (Typically, such suits are based on invasion of privacy or defamation.)
A brief summary of the facts. Grey's Anatomy star Eric Dane made a "home move" of himself, his wife Rebecca Gayheart, and Kari Ann Peniche. The tape fell into media hands, and soon thereafter an edited snippet of the film appeared on the website gawker.com. That brings us to Dane's claim of copyright violation and Gawker's fair use defense.
Trying to gauge how this claim will fair, the author of this PBS article analyzed the four typical factors relevant to a fair use defense against a claim of copyright violation in relation to the facts of the case at hand. A brief summary of his points:
Note: In some cases, it will be necessary to put practical considerations aside to make these points plausible.
1. Though Gawker, a for-profit business, clearly could reap some commercial benefit from its use of the tape, a court could readily find that the Gawker published the video for its newsworthiness, one justification for a fair use of copyrighted material. And, no, newsworthiness is not limited to "real" news or important issues; it certainly can include celebrity tabloid fodder.
2. The fact that Gawker "scooped" the tape's copyright holders - Dane, Gayheart, and Peniche - by publishing the tape first makes a fair use defense less likely. Generally the law believes that a copyright holder has the "right to control the first public appearance" of copyrighted material.
3. Amount and substantiality: Basically this factor looks at how much of the copyrighted material the alleged violator used. In this case, Gawker published four minutes of the twelve-minute video - one-third of the tape. Could they have gotten the same effect from a few screen shots or few seconds of film? Probably. This one leans against fair use.
4. Finally, did Gawker's publication "supplant the need for an individual to purchase a legitimate copy?" The substance of Gawker's clip is relevant here. I have not seen the clip for myself, but according to Arcamona, Gawker left the juicy bits of the film on the editing floor. Thus, if a person really wants to see the goods, they will have to seek a full copy of the film. Evidence of fair use.
If you are keeping score, this case seems to be a toss up. Two factors weigh in favor of each argument. If only there were a fifth factor! Though I have only a cursory knowledge of intellectual property law in general and copyright cases specifically, I think this might be a new scenario for the Copyright Act. For one reason or another, I know lots of folks will be peeping in on this case from time to time.
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