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“Eric and Rebecca are putting all of their eggs in the copyright infringement basket”

Everyone seems to have a legal opinion on the Gawker lawsuit involving the Eric Dane-Rebecca Gayheart sex tape. Here’s another one.

from – The copyright infringement lawsuit against Gawker Media filed earlier this week by celebrities Eric Dane and Rebecca Gayheart raised a number of legal questions for bloggers and the media. We wanted answers, so we asked Jonathan D. Reichman, a partner at intellectual property law firm Kenyon & Kenyon specializing in copyright law, to weigh in on the merits of the case.

After reading the suit, which Gawker posted online, Reichman said he was surprised Dane and Gayheart went after the media company for copyright infringement instead of other claims, like invasion of privacy or violation of right of publicity, which is a celebrity’s right to control how his likeness is used commercially.

“The unique thing about this case is that Eric and Rebecca are putting all of their eggs in the copyright infringement basket,” Reichman said. “They could have sued for publicity rights or privacy rights. Usually in these cases you see celebrities alleging defamation or liable or slander. I don’t see any of those claims.”

Reichman said that if he were Dane and Gayheart’s attorney, he would have at least added the additional claims for good measure. What Dane and Gayheart’s attorney Martin Singer did do, however, was register their sex tape with the Library of Congress and obtain a copyright. Reichman said that obtaining a copyright is fairly easy and copyright infringement is “an easy claim to assert, on paper.”

But will it hold up in court? And what defenses does Gawker have against it? Reichman explains, and suggests what Gawker’s next steps should be, after the jump.

According to Reichman, Gawker’s primary defense in this case will be fair use, which allows members of the media to use copyrighted material for purposes of commentary and criticism that would be of interest to the public.

But Reichman wondered if the original video post included enough of a critique to meet the fair use test. “To justify it on fair use grounds they have to do something ‘transformative,'” he explained. “There has to be something else there besides just a post. If they had a long post about how outrageous it is that TV stars are doing these tapes, then it is a decent fair use argument. If they’re simply just slapping it up on their Web site, then it’s not as good an argument.”

In Gawker’s defense, the original post did include a lengthy report about the couple and their threesome playmate, former beauty queen Kari Ann Peniche, although it’s more investigative journalism than social critique. We asked Reichman if it was too late for Gawker to add some criticism in order to meet the fair use test in this case, and he said that it probably was. “I think it would be a little hard to do it after the fact because it might be viewed as an admission that the initial posting didn’t meet the fair use standard,” he said. “They’re damned if they do, damned if they don’t at this point.”

However, Reichman also said that it might be difficult for Dane and Gayheart to prove they are owed monetary damages, even if it they can prove copyright infringement. “Most copyright infringement cases involve a copyright holder who is trying to make money from a product while someone else is selling it behind their back. Here, from the nature of the tape, I don’t think Eric or Rebecca had any intent to ever distributing it in order to make money off of it. So it will be hard to prove that they have any claim for monetary damages,” he said.

Right now, the best option for Gawker would be just to take the tape down, Reichman advised. Then they can work on convincing Dane and Gayheart to drop the suit. “They will have gotten what they want at that point, which is to get it off the Internet,” he said.

If he were repping Gawker, Reichman said he would go to the celebs and “argue that there’s just no money at issue and try to get the case to go away.” If that didn’t work, he would try to convince the court to facilitate a settlement or dismiss the charges.

Ultimately, it’s fair to say that this case is not likely to make it to court — cases like this usually get settled before ever getting that far along. But if Gawker continues to refuse to take the tape down, there’s no telling which side will give in first.


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