(The opinions expressed here are those of Alison Frankel, a
columnist for Reuters.)
By Alison Frankel
NEW YORK Jan 28 I don't usually cover the same
cases as TMZ and Entertainment Weekly, but Quentin Tarantino's
copyright complaint against Gawker, filed Monday in federal
court in Los Angeles, could well turn out to be one of those
extremely rare celebrity suits that end up being more important
for the legal principles they establish than for the name in the
Believe it or not, the prickly filmmaker's suit against the
snarky website raises apparently unprecedented questions about
whether a news organization contributes to copyright
infringement when it knowingly links, without elaboration, to
In case you've somehow managed to avoid the case so far,
here are the mostly undisputed facts. Tarantino is the author of
a screenplay for a Western titled "The Hateful Eight." Earlier
this month, when Tarantino found out that a draft of the script
had leaked, albeit narrowly, he abruptly stopped working on the
The filmmaker told the website Deadline Hollywood that he
was depressed by the unknown leaker's betrayal, although he also
said, according to Deadline, "I am not talking out of both sides
of my mouth, because I do like the fact that everyone eventually
posts it, gets it and reviews it on the net.... Frankly, I
wouldn't want it any other way. I like the fact that people like
my shit, and that they go out of their way to find it and read
"146 PAGES OF PURE TARANTINO"
Gawker Media's Defamer site reported the flap on Jan. 22, in
a post that ended with a casual invitation: "If anyone would
like to name names or leak the script to us, please do so at
Someone took Defamer up on the offer and tipped the site
that the script was posted at Anonfiles.com. On Jan. 23, Defamer
published a post entitled, "Here Is the Leaked Quentin Tarantino
Hateful Eight Script," which provided a link to the purported
screenplay at Anonfiles. (The post was later amended to add a
second link at Scribd.com; both links are now disabled.)
Defamer also quoted a summary of the script from Badass
Digest, which had posted the first two pages of the screenplay.
The Defamer post concluded, "For better or worse, the document
is 146 pages of pure Tarantino. Enjoy!"
Tarantino's lawyers notified all of the sites with links to
the screenplay of copyright infringement and demanded that they
take down the script. When Gawker refused to remove its links,
Tarantino and his counsel at Lavely & Singer sued the site for
contributory infringement, accusing Gawker both of inciting
someone to create a link to the screenplay at Anonfiles.com and
of alerting its readership to the link's existence. (Tarantino's
complaint also accuses Anonfiles of direct infringement for
failing to respond quickly enough to the filmmaker's notice of a
A defiant Gawker posted its response to Tarantino late
Monday afternoon. The site's editor, John Cook, argued that
Tarantino had turned "The Hateful Eight" into a news story by
telling Deadline Hollywood about the leaked screenplay - in a
conversation in which he said that he likes when people comment
on his scripts on the Internet.
No one at Gawker or Defamer encouraged anyone to create a
link to the script, Cook said, or even knows how Anonfiles
obtained it. According to Gawker, Defamer published a link to
the script because people in Hollywood were talking about the
contents of the screenplay.
"Contributory infringement is a legal theory that has
traditionally been deployed against file-sharing sites and
search engines - venues that explicitly exist as directories to
copyrighted content," the Gawker post said. "Gawker and Defamer
are news sites, and our publication of the link was clearly
connected to our goal of informing readers about things they
WAS IT FAIR USE?
Cook is entirely correct that there's scant precedent on
contributory infringement by a news organization, according to
two copyright lawyers I spoke with on Tuesday. That's why this
case raises interesting questions: Will Tarantino be able to
show any connection between Gawker and the anonymous uploader
from Anonfiles? If not, the infringing acts Gawker allegedly
contributed to are those of its readers who clicked on Defamer's
links to the screenplay. And according to Joseph Gratz of Durie
Tangri, who frequently represents defendants in contributory
infringement litigation, Gawker may be able to show that its
readers were making fair use of Tarantino's script. And if
Tarantino can't show direct infringement, Gratz said, his claim
of contributory infringement can't survive.
Both Gratz and Kevin May of Neal Gerber Eisenberg, who
successfully represented a social bookmarking site in a 2012
contributory infringement case at the 7th Circuit Court of
Appeals, told me they'd never before seen a suit over a link in
a news story. "It's a super weird situation," Gratz said.
Most contributory infringement cases, by contrast, involve
file-sharing sites, hosting sites or search engines accused of
providing users with access to copyrighted materials. Typically,
defendants argue that they didn't know they were hosting
infringing material, since knowledge is one of the two prongs of
the test for contributory infringement.
Gawker may be planning to claim that because Tarantino told
Deadline Hollywood he welcomes comments from online readers,
Defamer didn't realize it was defying his wishes when it linked
to his script.
"The argument would be that his statement created an implied
license or waiver," Gratz told me. "Gawker could say, 'At the
time we posted, we had every reason to think it was okay.'"
That defense, however, runs into problems because Gawker
left up live links after Tarantino notified it of copyright
infringement (at least according to Tarantino; the links in
Defamer's post now lead to those dead ends at Anonfiles and
So that leaves Gawker to argue that it didn't contribute to
infringement because there was, to quote Gratz, "no actionable
act of direct infringement." If Tarantino comes up with evidence
that the anonymous uploader of the script was acting at Gawker's
behest, Gawker has problems.
But if we take Gawker editor Cook at his word and assume
that there's no connection between his site and the Anonfiles
uploader, the case will turn on whether Gawker readers infringed
Tarantino's copyright when they accessed the screenplay through
Gawker's link, or whether they were making fair use of
Cook's response to Tarantino presages Gawker's fair use
defense by highlighting the news value of the screenplay, which
was purportedly the talk of Hollywood.
"Does clicking on the Tarantino script add to the
dissemination of knowledge and learning? You can at least make
an argument for that," Gratz said.
He also doesn't think much of Tarantino's contention that
posting the screenplay wasn't fair use because it will cost the
filmmaker revenues, in the form of a publisher's advance and
royalties on "The Hateful Eight" script in book form.
On the other hand, fair use usually involves some kind of
transformation of or commentary on the copyrighted material.
Here, Gawker didn't provide editorial context for the link to
the "Hateful Eight" screenplay, except to say that it's "pure
Tarantino." (Its suggestion that readers "Enjoy!" the script
doesn't help fair use arguments either.) Courts may not be eager
to extend contributory infringement to news organizations, May
told me, but "this is a close call."
Tarantino counsel Martin Singer of Lavely & Singer didn't
immediately respond to a message I left with his assistant.
Gawker editor John Cook said in an email that he can't comment
beyond Gawker's posted response.
(Reporting by Alison Frankel; Editing by Ted Botha)