Dane v. Gawker [1]

On September 23, 2009, Grey's Anatomy star Eric Dane and his wife Rebecca Gayheart filed a complaint for copyright infringement against Mark Ebner and various Gawker Media entities in the federal district court for the Central District of California.

According to the Complaint, in 2008 Plaintiffs made a home video recording of the two of them with a third party, Kari Ann Peniche, that depicted "intimate moments and conversations among" the threesome, and further depicted the plaintiffs "partially and sometimes fully disrobed."   (Compl. ¶ 10)  The Complaint further alleges that defendant Mark Ebner obtained a copy of the video in 2009 and gave it to Gawker, which then posted clips of the video on the Defamer and Fleshbot websites beginning on August 17, 2009.  (Compl. ¶ ¶ 12-14)  On August 19, 2009, Plaintiffs registered their copyright in the video with the U.S. Copyright Office.

On October 30, 2009, the Defendants filed a motion to strike portions of the Plaintiffs' Complaint, on the grounds that Plaintiffs were not entitled to seek statutory damages or attorneys' fees because the alleged infringement commenced prior to registration of the video with the Copyright Office.  The Court granted Defendants' motion in part on December 14, 2009.  On December 23, 2009, Defendants filed their Answer to the Complaint asserting various affirmative defenses, including fair use and that distribution of the video is protected under the First Amendment.