Gawker pays to settle 'McSteamy' copyright suit

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Gawker pays to settle 'McSteamy' copyright suit

Tue Aug 03, 2010 @ 07:58PM PST
By Matthew Belloni

Mcsteamy A legal battle on the cutting edge of celebrity media and copyright law has ended with gossip blog conglom Gawker Media agreeing to pay actors Eric Dane and Rebecca Gayheart and take down a homemade threesome video featuring the couple. In exchange, they have dropped their $1 million lawsuit.

Sources valued the settlement at low-six figures. Reps for Gawker and the couple declined comment on the number.

The case, filed in September after excerpts of the so-called “McSteamy” tape surfaced on Gawker’s Defamer blog and porn-culture sister site Fleshbot, became noteworthy because the couple sued for copyright infringement, a somewhat novel legal theory in cases involving sex tapes. 

Dane, a “Grey’s Anatomy” co-star, held the camera for a portion of the shoot, giving him a partial copyright in the footage. (The couple’s friend, Kari Ann Peniche, also helmed footage, but her rights were said to have been purchased by Dane and Gayheart.)

Gawker initially defied demands that the video be removed, citing “fair use” under copyright law. As the litigation proceeded, the video was viewed more than 4 million times.

In December, the couple’s case took a hit when U.S. District Judge George Wu said Dane and Gayheart could not recover statutory damages of up to $150,000 per infringement because they registered the tape with the Copyright Office days after Gawker posted it. Proving damages became tougher but the couple still argued they were entitled to Gawker’s profits from posting the video.

The two sides then agreed to a private mediation, which facilitated a settlement that was filed with the court last week.

Gawker has in the past been particularly aggressive in the face of legal claims from the likes of Tom Cruise and the Church of Scientology. But not this time.   

“Although we are confident that our use of the video on Gawker was protected fair use, because the posts already had been available to our readers for nearly a year, and because we already had won an important decision from the court striking large parts of the plaintiffs’ damages claims, we agreed to remove the posts as part of a global settlement to avoid the burden of further litigation,” Gawker COO Gaby Darbyshire said in a statement.

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The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to

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