Why Hulk Hogan Is Likely to Lose Sex Tape Lawsuit Against Gawker (Analysis)

Hulk Hogan Roast 2011
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CULVER CITY, CA - AUGUST 01:  Wrestler Hulk Hogan laughts onstage at the Comedy Central Roast Of David Hasselhoff held at Sony Pictures Studios on August 1, 2010 in Culver City, California. The""Comedy Central Roast of David Hasselhoff" will air on Sunday, August 15, 2010 at 10:00 p.m. ET/PT.

In the wrestling ring, Hulk Hogan was never the most agile man. Instead, he relied mostly on brute strength. In a $100 million lawsuit against Gawker for posting a sex video, can he muscle his way to victory?

It's now being reported that Hogan dropped his case in federal court to refile in state court, ostensibly so he could consolidate claims against Gawker and Heather Clem, his partner in the video who is alleged to have had a role in leaking it.

But that tells only a very small part of the story. Soon after Hogan made his new filing in state court, Gawker had it removed back to federal court, blasting what it is calling a "blatant attempt at shopping for a forum and a judge that plaintiff finds more favorable."

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In some respects, it's not a surprise that Hogan would attempt to do this. In preliminary decisions handed down in the past couple of months, a federal judge detailed why Hogan was unlikely to prevail in the case. But the moves to escape such a fate could come back to bite him -- the equivalent of Hogan elbowing out the referee and turning his back, only to find a kick in the midsection.

The legal controversy itself is interesting and could be pertinent to other celebrities who find themselves looking to take legal action when a sex tape leaks to the Internet.

In October, Gawker posted one minute from a 30-minute Hulk Hogan sex tape as well as an essay by A.J. Daulerio that opens by musing about how "we love to watch famous people have sex." The writer discusses the enjoyment of seeing a sex tape of a "Real Life American Hero to many" and gives the play-by-play action of the tape, which he describes as a "goddamn masterpiece."

Gawker was sued for posting the sex tape portion -- and this isn't the first time the website has been hit in this manner.

Longtime readers of this blog might remember what happened when Gawker posted in 2009 four minutes of a naked video of  Rebecca Gayheart and Eric Dane. The website was sued for $1 million. But what made the case provocative back then was the pioneering legal tack engineered by plaintiff attorney Marty Singer.

"The person who records the tape is the copyright owner," Singer told us before he filed the lawsuit. Giving advice to celebrities doing sex tapes, he added, "So you should be the cameraperson and try to own or co-own the copyright because third-party distributors are less likely to touch a sex tape if there is a potential copyright claim."

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The theory never got fully tested in court. Gawker claimed it had a "fair use" right to publish the tape, but it paid to make the lawsuit go away.

Now on to the Hogan lawsuit, where the former professional wrestler and reality TV star first sued Gawker in October for invasion of privacy, publication of private facts, misappropriation of his publicity rights and infliction of emotional distress.

In late October, Hogan experienced his first defeat. Florida federal Judge James Whittemore denied a temporary restraining order because he determined that the plaintiff had failed to demonstrate an immediate and irreparable injury.

So in November, Hogan's lawyers amended the complaint and most significantly, took the Singer cue to add a copyright claim. Hogan asserted that he was the owner of the copyright of the video and that Gawker didn't have a right to distribute or exploit it.

As a result, Gawker got another opportunity to test their fair use defense that it was building in the McSteamy threesome case.

And ... Gawker kicked the snot out of Hogan.

During the past few weeks, culminating in a ruling Dec. 20, Whittemore has made it pretty clear why Hogan is unlikely to prevail on the merits of his claims.

The judge found that Gawker's publishing of the video excerpt was "in conjunction with the news reporting function" and that the "factual finding supports a colorable fair use defense."

The judge addressed how he read the facts in dispute, kindly noting that Gawker in the post in question had discussed the public's fascination with celebrity sex and made a comment on the already reported controversy of sexual relations between Hogan and the then-wife of his best friend. Further, the judge seemed slightly dubious that Hogan actually owned copyright on the tape and even if he did, the unlikeliness that Gawker was usurping Hogan's potential market for the video since he wouldn't want it published. (Read the judge's order here.)

The injunction denial was nominally addressed to Hogan's copyright claim, but by determining that the information Gawker had published was newsworthy and by citing the Supreme Court's recognition that even minimal interference with the First Amendment freedom of the press causes an irreparable injury, the judge also was signaling that Hogan would have a tough time eventually winning on his other claims. Those same First Amendment defenses could shield Gawker on the privacy front.

Hogan's attorneys were in the midst of appealing the judge's orders up to the 11th Circuit Court of Appeals when, suddenly, his lawyers decided to switch tactics once again, dropping the federal case and refiling in state minus the copyright claim. But the problem is that not only was the case then promptly taken back to federal court by the defendants, but Hogan's dismissal had the effect of rendering the appeal moot. On Friday, the clerk of the court told the 11th Circuit about the dismissal, which possibly takes it off the appellate calendar and kills Hogan's best shot of prevailing in the dispute.

Now, Hogan is back before a federal judge with the other side describing how the "plaintiff has fraudulently joined the Gawker defendants (none of whom is a citizen of Florida) to his action against Mrs. Clem (who is a citizen of Florida) for the sole purpose of defeating diversity [jurisdiction]."

The dispute might still be a live controversy. But having attempted to kick sand in the eyes of a referee who was already disposed to favor Gawker's side, Hogan is very close to a three count where the bell will ring. He'd better say his prayers, eat his vitamins and hope for one of those out-of-body moments that he once experienced during his professional wrestling days when he suddenly gains a new source of strength and makes a miraculous comeback.

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner