How Marty Singer plans to stop the Eric Dane naked threesome tape

By Matthew Belloni

The Internets are ablaze today with excerpts of a video showing "Grey's Anatomy" star Eric Dane cavorting naked with wife Rebecca Gayheart and a former beauty queen and alleged Hollywood madam named Kari Ann Peniche.

Not long after the video was posted on Gawker, Dane and Gayheart's lawyer Marty Singer got on the phone with TMZ and threatened to sue anyone who publishes the video, which he calls "a private, confidential tape."

So, what legal theories will Singer use to prevent Gawker or anyone else from posting the tape or otherwise profiting from it? He gave us a preview last month in the "Free Advice" section of our annual Power Lawyers issue.

Here's the Q&A:

Q: How do I keep my sex tape off the Internet?

Singer: Don't make one! But if you must, here are some tips on how to keep it private. The person who records the tape is the copyright owner. So you should be the camera-person and try to own or co-own the copyright because third-party distributors are less likely to touch a sex tape if there is a potential copyright claim. Even if you don't own the copyright, you also can assert claims for violation of your rights of privacy and publicity, both of which can lead to injunctions against distribution. Unless someone is on the tape telling you that the tape will be exploited, the release will violate your expectation of privacy. Plus, your name or image can't be used for commercial purposes without your consent, so you can stop the promotion of the tape if not the release itself. Finally, if you didn't know you were being taped, criminal charges might also be appropriate.

We took a quick look at the Gawker excerpts (research!) and it's pretty clear that Dane is holding the camera for at least a portion of the video. So look for Singer to assert a copyright infringement claim on his behalf, as well as claims for violation of rights of privacy and publicity. Knowing how aggressive Singer is, he'll probably seek an injunction. But he should act fast. Gawker says its sister site Fleshbot is planning to post the full video tomorrow.