Tarantino v. Gawker
In what is perhaps the greatest example of a film auteur facing off against a journalistic outpost since Orson Welles battled William Randolph Hearst, Quentin Tarantino has sued Gawker for contributory copyright infringement due to Gawker’s linking to and publicizing Tarantino’s leaked screenplay for Hateful Eight.
On January 23, Defamer, a site owned by Gawker Media, published “Here is the Leaked Quentin Tarantino Hateful Eight Script,” an article that included a brief excerpt and summary of the story and included two links to the screenplay. The links, which go to a third-party site, are still up as of this writing. Tarantino filed suit on Monday the 27th (the full complaint can be read here.) Gawker claims that they had nothing to do with leaking the script or posting it online. They simply, from their perspective, joined many other outlets on reporting about and linking to the script.
If you read through that Gawker post, you’ll also see that they claim, in big, bold letters, that “Gawker is not being sued for copyright infringement.” Is that true? Let’s try to sort this out.
Tarantino’s complaint starts out dramatically, as one might expect. The second paragraph reads:
Gawker Media has made a business of predatory journalism, violating people’s rights to make a buck. This time they went too far. Rather than merely publishing a news story reporting that Plaintiff’s screenplay may have been circulating in Hollywood without his permission, Gawker Media crossed the journalistic line by promoting itself to the public as the first source to read the entire Screenplay illegally. Their headline boasts “Here Is the Leaked Quentin Tarantino Hateful Eight Script” – “Here,” not someplace else, but “Here” on the Gawker website. The article then contains multiple direct links for downloading the entire Screenplay through a conveniently anonymous URL by simply clicking button-links on the Gawker page, and brazenly encourages Gawker visitors to read the Screenplay illegally with the invitation to “Enjoy!” it. There was nothing newsworthy or journalistic about Gawker Media facilitating and encouraging the public’s violation of Plaintiff’s copyright in the Screenplay, and it’s [sic] conduct will not shield Gawker Media from liability for their unlawful activity. [Emphasis in original.]
The complaint goes on to allege that Gawker “…transmitted or encouraged an infringing unauthorized full copy of the Screenplay to be posted for download on the obscure file share website AnonFiles.com…” If true, this would place Gawker squarely in the middle of the act of leaking the script.
In any case, the Complaint lays out a claim for copyright infringement against AnonFiles.com and various “Does” (think “John Doe”) to be named later. This “Does” business is common in initial complaints – often, as in this case, the names of potential defendants are unknown at the outset and may only be discovered later on.
Contributory Copyright Infringement
The second count in the complaint is where Gawker comes in. They are being sued for contributory copyright infringement. The Complaint alleges:
Defendants have infringed Plaintiff’s exclusive copyright in and to the Screenplay by knowingly facilitating the transmission and/or dissemination of unauthorized copies of the copyrighted work, and causing the copyrighted work to be copied and distributed worldwide, all without the consent of Plaintiff.
In the 2005 case MGM v. Grokster, the US Supreme Court wrote:
One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it. Although “[t]he Copyright Act does not expressly render anyone liable for [another’s] infringement,” [citing a previous case, Sony v. Universal, from 1984 – known as the “Betamax” case]…, these secondary liability doctrines emerged from common law principles and are well established in the law…
This case, of course, runs right up against the Fair Use doctrine, which provides a defense to claims of copyright infringement and broadly protects journalists’ reporting on newsworthy information. In an L.A. Times opinion piece, Jon Healey wrote:
Writing about a copyright dispute, especially when the subject is a work that leaked before publication, is a sensitive business. For a major work, you can count on the copyright owner to sue the leaker and the site that makes the pirated copy available; Tarantino’s complaint also seeks damages from AnonFiles and a number of unidentified individuals who helped put the script online. Yet the fact of the leak is just part of the story; so is what was leaked.
[Copyright attorney Michael] Page argued that Gawker would have been on safer ground had it published an excerpt from the script rather than pointing readers to where to find it. Yet once you’ve published an excerpt, the next question from readers is, “What about the rest of it?”
Again, I’m not arguing that what Gawker did was legal — that’s a judge’s decision. I’m just saying that there’s a journalistic reason for Gawker to do what it did, and those of us who write about copyrights struggle often with the question of how to report what seems newsworthy without crossing a line that’s drawn case by case.
I suspect that, if this case doesn’t settle (and, of course, I assume it will, as almost all cases do), it will come down to whether or not Gawker actively participated in the leaking of the screenplay. If, on the other hand, Gawker simply linked to an already-leaked script, they will have a much stronger fair use defense.
The greatest downside to all of this, for Tarantino fans, is his decision not to make the movie as a result of the leak. Then again, yours truly saw Pulp Fiction twelve times in the theater, so I may be slightly biased.
Photo courtesy of Georges Biard [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons