Eric Dane And Wife Lose First Round, Dignity, In Sex Tape Case Against Gawker

A federal judge has dealt a blow to married celebrities Eric Dane and Rebecca Gayheart in their lawsuit against Gawker Media over a racy tape.

U.S. District Court Judge George Wu ruled that the couple can't recover statutory damages for alleged copyright infringement because they had not registered the copyright to the video before Gawker posted a clip on the Defamer blog. The decision significantly limits Gawker's liability if the actors prevail on their infringement claim.

Wu informed the parties of his ruling on Monday, but has not yet filed a final order, according to Gawker's lawyer, Al Wickers of Davis Wright Tremaine.

The 12-minute video "depicts intimate moments and conversations" between Dane, Gayheart and another woman, Kari Ann Peniche, according to the lawsuit. "Plaintiffs, who were partially and sometimes fully disrobed in the video, recorded it behind locked doors in Peniche's bedroom," the lawsuit alleges.

Gawker posted around four minutes of the video on the Defamer blog on Aug. 17 with the headline "Dane's Anatomy: McSteamy, His Wife and a Fallen Beauty Queen's Naked Threesome." Gawker also posted an "uncensored" version on Fleshbot the following day.

At the time, Dane and Gayheart had not yet registered the copyright to the video. Content owners can't recover statutory damages for copyright infringement, which range from $750 to $150,000 per infringement, unless they register the work before the infringement commences.

Dane and Gayheart sent Gawker a takedown notice the same day the video first appeared on Defamer. Gawker, which did not remove the video, intends to argue that it was entitled to post the clip under the fair use doctrine.

If Gawker loses that argument and Wu finds that the clip infringed the actors' copyright they would be limited to recovering non-statutory damages, which could include the profits Gawker earned as a result of the video as well as actual damages, according to attorney Venkat Balasubramani. The extent of actual damages, however, might be minimal. "Some cases define actual damages as lost licensing revenues, or damage to the owner's ability to license the work," Balasubramani wrote recently in a blog post about the case. "Gawker can argue that its own commercial exploitation of the tape did not impair the market for the tape since Dane had no intent to commercialize it. End result: Dane is awarded nominal damages and doesn't get his fees either."