May 22, 2013 8:00am PT by Eriq Gardner
How to Keep a Celebrity Sex Tape Off the Internet
This story first appeared in the May 31 issue of The Hollywood Reporter magazine.
When America's Founding Fathers included in the Constitution the goal to "promote the Progress of Science and useful Arts," they could not have predicted that the same document one day would be at the center of a $100 million battle over whether a former pro wrestler's sex tape should be taken off the Internet. But in the fall, shortly after Gawker Media posted clips of Hulk Hogan fornicating with his friend's wife, Hogan sued, claiming Gawker had violated his rights.
In doing so, Hogan (born Terry Bollea) became the latest celebrity to become mired in the uncertain laws governing what private material can and can't be taken down. From Kim Kardashian and Grey's Anatomy star Eric Dane to magicians Siegfried and Roy to, most recently, Teen Mom Farrah Abraham, there's no such thing as a safe sex tape (though Abraham -- and perhaps others -- weren't exactly upset that the video got out).
Experts say a variety of options exist for stars who find their private videos online. Subjects of such videos can assert a copyright violation if they also "controlled" the shoot (like holding the iPhone camera) and thus can claim ownership. Privacy claims or rights of publicity violations also are possible, though those run up against possible First Amendment issues.
Attorney Ed McPherson has stopped tapes for Perry Farrell, Fred Durst and Austin Powers star Verne Troyer, but he's most famous for the path-forging case he litigated during the late-'90s for Bret Michaels, who wanted to prevent distributors from circulating a video of him having sex with Pamela Anderson. "I told Bret I needed to watch the tape," recalls McPherson. "He said, 'What the hell for?' I said I needed to see if he looked into the camera at any point and said something like, 'Gee, we are going to make lots of money for this.' " In 1998, a federal judge in California stopped Internet Entertainment Group from selling copies after Michaels registered a copyright on the tape and demonstrated that publishing it would cause irreparable injury.
The move was a big win for celebrity privacy, but several days before IEG was set to release the tape, the TV newsmagazine show Hard Copy ran a story about the video and aired clips. Anderson then went after Paramount, the show's producer, but a California judge held that the show's use was covered under the First Amendment as being newsworthy. "Courts have been fairly receptive to the fair use arguments of news organizations," notes Kelli Sager, Paramount's lawyer in the case.
Still, any time a celebrity walks into a lawyer's office with bad news of a leaked sex tape, the first move usually is to register ownership. That is, if the video already has gone public. If not, that process very well could trigger the exposure. McPherson says a celebrity must calculate risks. "I asked a guy at the Copyright Office, 'If I send the tape to you, is there any chance it can be leaked?' He said, 'Absolutely.' "
Hogan acquired ownership to his sex tape by making a deal with Bubba the Love Sponge, a radio host whose wife secretly was recorded having sex with the former wrestler. "Bubba owned and operated the recording machinery, therefore when we settled with him, Bubba transferred to Hulk all of the rights of the tape," says Hogan attorney Charles Harder.
But a federal judge in Florida decided that Gawker's publishing of a video excerpt along with a detailed commentary was "in conjunction with the news reporting function" and thus protected. Hogan then refiled his case in state court claiming a privacy intrusion, and a different judge was so aghast that she ordered Gawker in April to pull down the video as well as nearly all of the description in its post.
Gawker removed the video but refused to delete the story and now is appealing the case. The site, which backed down after posting the Durst and Dane videos, has refused Hogan's settlement offers. "We're making a stand," says Gawker owner Nick Denton.
There have been other precedent-setting disputes, including the 2004 controversy over Paris Hilton's sex tape, which demonstrated that a celebrity's nonfamous sex partner also might have the ability to license distribution of a sex tape. In those cases, some famous people have attempted to assert a "right of publicity" claim based not on the sex tape itself but on the fact that his or her valuable name and likeness are being used to sell it.
Attorney Michael Weinsten says there are instances where "it makes sense to pay some money to buy the tape and make it go away." Otherwise, he adds, a celebrity might end up like Colin Farrell. After all, the Irish actor won a successful injunction in 2006, but a quick Google search will reveal him doing the deed for all to see.