Is Gawker off the financial hook for Eric Dane naked threesome tape?

By Eriq Gardner

Gawker Media has responded to a $1 million lawsuit filed by "Grey's Anatomy" star Eric Dane and his actress wife Rebecca Gayheart for the gossip website's posting of a four-minute video of the pair carousing naked with a former beauty queen.

In September, Dane and Gayheart sued Gawker for copyright infringement, seeking an injunction preventing distribution of the clip. The married acting couple are represented by Marty Singer, who believes that "the person who records the tape is the copyright owner." 

On Friday, Gawker filed a Motion to Strike that doesn't address the legitimacy of whether "McSteamy" is entitled to a copyright in the tape, but instead takes issue with the amount of money Dane and Gayheart claim they are owed for Gawker's copyright transgression. 

The Motion to Strike points out that the videotape was neither published by the plaintiffs nor registered with the U.S. Copyright Office at the time that Gawker posted it. Because of this fact, Gawker claims that Dane and Gayheart can't recover statutory damages and attorneys' fees.

Amazingly, Dane and Gayheart did register copyright on their naked video on August 19, two days after Gawker posted the video. According to side documents in this case, lawyers for Gawker including Alonzo Wickers and Karen Henry of Davis Wright Tremaine have been leaving voice messages and e-mails for Singer, trying to get him to agree that his clients can't recover statutory damages.

It's worth noting that Gawker still has the video up on its website. If the infringement wasn't "willful" on August 17, might it be now?

Previously: Celebrity sex tapes — a legal history