Copyright in celebrity s-x-tapes? McSteamy sues for unauthorised publication of home video

Grey’s Anatomy star Eric Dane (known as “Dr McSteamy”) and wife Rebecca Gayheart have filed a federal copyright suit against Gawker Media in California for the unauthorised publication of a private “s-x-tape”.  The couple have claimed $US1 million in damages and seeking an injunction preventing further acts of copyright infringement.
 
The proceedings follow celebrity news provider Gawker Media’s posting of a 4 minute edited version of the 12 minute “s-x tape” on its weblog Defamer.com on 17 August 2009, entitled “Dane’s Anatomy: McSteamy, His Wife and a Fallen Beauty Queen’s Naked Threesome”.  The post does not contain s-x scenes, but shows the couple and former Miss USA beauty queen, Kari Ann Peniche, naked and inebriated in Ms Peniche’s apartment.  Shortly after the post was made, the plaintiffs registered their rights as the authors and owners of the video with the United States Copyright Office, to enforce protection of their copyright.
 
Copyright bloggers in the US are debating whether Gawker’s conduct amounts to “fair use” under section 107 of the US Copyright Act. The broad section allows use of a copyrighted work for various purposes, having regard to Gawker’s purpose of the use, the nature of the work, the amount of the work reproduced and the impact on the market value of the work. This is to be contrasted with the Australian Copyright Act 1968 defence of “fair dealing”, which only provides defences for specific purposes including criticism or review, parody or satire, news reporting.  
 
Earlier this month, Gawker filed a motion to strike, contesting the plaintiff’s entitlement to statutory damages on the basis that the video was neither published nor registered with the US Copyright Office at the time of uploading to the Gawker site. Under US law, the date of registration is significant as it determines whether the rightsholder can recover statutory damages for infringement of their copyright. No such requirement exists in Australia, as the owner’s rights exist from the date of creation of the work.