• by Wendy Davis  @wendyndavis, January 22, 2008

When a nine-minute video of Tom Cruise touting the Church of Scientology hit the Web recently, the group quickly sent out takedown notices. Many publishers complied, but not Gawker Media's Nick Denton.

Now, the notoriously litigious Scientologists have complained to Gawker that the video was pirated, and have demanded its removal. Denton argues that posting the video constitutes a fair use. "[I]t's newsworthy, and we will not be removing it," Denton wrote on the site last week. A spokeswoman for the Church of Scientology said the group is considering taking legal action.

Should the matter come to court, legal experts say it's not easy to know who will prevail. "Copyright law really chokes on situations like this," said Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law. "It's not something that can be glibly resolved."

One of the main issues in any litigation about the matter is likely to be whether Gawker was justified in posting nine-plus minutes of Cruise's proclamations, including statements like: "We are the authorities on the mind," and "When you're a Scientologist, and you drive by an accident, you know you have to do something about it ... you're the only one who can really help."

Copyright lawyer Rick Kurnit of Frankfurt Kurnit Klein & Selz said the Church of Scientology can argue that Gawker should have just published shorter excerpts to make its point.

"Clearly, it's permissible to post some portion of it, to illustrate whatever the point of view being expressed about the underlying material is," Kurnit said.

On the other hand, he said, Gawker can counter that it was necessary to publish as much as it did to show it wasn't taking some of the more bizarre statements out of context.

Goldman added that while Gawker could have theoretically edited down the clip, "there's no question that showing the whole video from beginning to end shows a more complete picture."

The Cruise statements on the clip were part of a three-hour video made of a 2004 awards ceremony at which the actor was honored for efforts championing world literacy, according to the Church of Scientology. The group's spokeswoman said the organization was concerned that the clip will be taken "out of context."

The Church of Scientology's law firm, Moxon & Kobrin, claimed in its takedown notice to Gawker that the video had been stolen. But publishers typically are allowed to post material that's been stolen, provided they came across it lawfully, Kurnit said.

Denton emphasized the newsworthiness of the clip in his post, but that alone doesn't mean it loses copyright protection, Kurnit said. Otherwise, documentary makers or news photographers, for example, wouldn't be able to charge for the right to publish their work.

At the same time, whether material is independently newsworthy is one of the major factors that courts focus on when evaluating fair use claims, said Marjorie Heins, founder and director of the anti-censorship think tank Free Expression Policy Project.

Regardless of the legal merits, the Scientologists have a long track record of suing for copyright infringement. In one famous case, the church unsuccessfully sought an injunction to prevent the Washington Post from publishing material gleaned from public court records.

Even if the Church of Scientology could prevail in court, it doesn't appear likely that the group can permanently put the kibosh on the video, which has drawn more than one million views on Gawker.com alone. "No matter what they do at this point, the cat's out of the bag," Goldman said. "There's no way to put this video back behind the wall."