The McSteamy sex tape was the scandal of the summer, and the copyright lawsuit filed by actors Eric Dane and Rebecca Gayheart against Gawker Media is still pending.
A few months ago, we sought out a legal opinion on the case, but last week we spotted another take on the outcome. Rob Arcamona wrote his take on the case for PBS’s MediaShift blog, focusing on what Gawker cut out of the original 12-minute sex tape to whittle it down to about four minutes. What they cut out and why can affect Gawker’s “fair use” defense, Arcamona said:
“In the end, if this case goes to trial, the outcome will likely depend on what Gawker chose to cut from the video. It’s a strange reality that, in the case of sex tapes, what a news organization doesn’t publish is sometimes more important that what it does.”
Arcamona still thinks Gawker would prevail in a suit, although its chances of making it to trial are slim.
As our legal source, Jonathan D. Reichman, pointed out, cases like this usually get settled before ever getting that far along. In any case the edited video is still up on the site, so Gawker seems to be showing no signs of caving to legal pressure — or following the advice of attorneys like Reichman — and taking it down to avoid further flack from Dane and Gayheart. The case might be settled eventually, but it will continue to be a source of debate on fair use until then…and probably for a long time after as well.
Any legal minds out there want to add their two cents? Leave your thoughts on the case in the comments.