Gawker Defies Demand from Church of Scientology to Remove Creepy Tom Cruise Video

Earlier this week, a promotional/inspirational video for the Church of Scientology featuring Tom Cruise began circulating online. The video is bizarre -- against the background of what sounds like the Mission Impossible theme, Cruise extols the virtues of Scientology and urges viewers to embrace its ethics and worldview. Among many, many other things, he drops gems like "We are the authorities on getting people off drugs. We are the authorities on the mind. We are the authorities on improving conditions" and "We are the way to happiness. We can bring peace and unite cultures."

Some might say that the clip has only gossip value, but others assert that it reveals something about Cruise's position within the controversial organization (which to some may still have only gossip value). Nevetheless, it has caused some complicated legal maneuvering this week. From Gawker:

Several indoctrination videos were available on Google Video, on Sunday, and showcased on Gawker, before being removed by the person who had originally posted them. Yesterday, for a few hours, the clip of Tom Cruise discussing his beliefs as a Scientologist appeared on Youtube, and was republished by Radar and Defamer. That video is no longer available, most likely after the Church of Scientology sent in a copyright infringement notice. Gawker is now hosting a copy of the video; it's newsworthy; and we will not be removing it.

Sure enough, lawyers for the Church of Scientology sent a takedown notice to Gawker Media, alleging that the video was stolen and that Gawker and Defamer's distribution of the video violated its copyright. It also asserted that, because the video was stolen, California criminal laws relating to receipt of stolen property and theft were implicated.

Not intimidated, Gawker fired back:

We are using this video in the context of news reporting and critical commentary, which are uses that may not be authorized by your client, but which serve the public interest. For this, and other reasons, we believe our use is fair. We further do not accept that we have broken any criminal laws in publishing it, and in any event, several of the statutes you cite are inapplicable in this case.

Gawker's fair use argument looks like a strong one, although the video's previously unpublished status might give a court some pause (assuming that the Church's previous use of the video would not qualify it as "published"). Even if it were unpublished, the fair use provision states expressly that "[t]he fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of [the four fair use factors]." Moreover, the First Amendment would likely block any criminal prosecution of Gawker for publishing material that it lawfully obtained, even if it knew that the clip was initially stolen (which itself would be hard to prove). See Bartnicki v. Vopper, 532 U.S. 514 (2001).

Eriq Gardner at THR Entertainment & Media Law Blog has some detailed analysis of the fair use argument, but I disagree with his conclusions.

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