Acting couple Eric Dane and Rebecca Gayheart have dropped a $1 million lawsuit against Gawker.com for publishing a videotape featuring them in a nude threesome with a friend after the gossip website agreed to take down the much-viewed posting.

Eric Dane and Rebecca Gayheart

Gawker got plenty of mileage from the tape after posting it in August 2009. The posting was its most popular of 2009, generating more than 3.4 million hits -– many of them after “Grey's Anatomy” star Dane and wife Gayheart sued for copyright infringement.

But with the settlement of the suit, the tape of Dane, Gayheart and friend Kari Ann Peniche frolicking in Peniche's apartment and the posts related to it are no longer available on the site. The parties filed settlement papers earlier this week.

“Although we are confident that our use of the video on Gawker was protected fair use, because the posts already had been available to our readers for nearly a year, and because we already had won an important decision from the court striking large parts of the plaintiffs' damages claims, we agreed to remove the posts as part of a global settlement to avoid the burden of further litigation,” Gaby Darbyshire, Gawker Media's chief operating officer, tells On Point.

She was referring to a Dec. 14 ruling in which U.S. District Judge George H. Wu said Dane and Gayheart could not recover statutory damages of up to $150,000 because they registered the tape with the Copyright Office after Gawker posted it.

In their complaint, the couple accused Gawker of “despicable misconduct” for “maliciously” publishing an uncensored copy of the video on its X-rated Fleshbot.com website. They were also seeking actual damages of more than $1 million, including Gawker's profits from publication of the tape.

But actual damages are harder to prove in a copyright infringement case than statutory damages. Gawker did not disclose whether it paid Dane and Gayheart to settle their suit but, with the dismissal of the statutory damages claim, any payment probably wasn't much.

The so-called “McSteamy” tape, named for Dane's character in “Grey's Anatomy,” actually wasn't very steamy by Pamela Anderson-Tommy Lee standards. Gayheart and Peniche, a former beauty queen, are shown nude in a hot tub while Dane, who is also naked, films them but there is no sexual activity.

Copyright infringement actions have become a favored vehicle for celebrities whose sex tapes inadvertently show up online. A copyright can be registered after the alleged infringement but “no award of statutory damages or of attorney's fees ... shall be made for ... any infringement of copyright in an unpublished work commenced before the effective date of registration.”

Dane and Gayheart argued it was premature to strike their statutory damages claim before discovery in the case had begun. “[A] great many facts may come to light,” they said, including “further acts of copyright infringement that commenced after the effective date of Plaintiffs' registration.”

But Judge Wu said the “references in the Complaint to statutory damages and attorneys' fees are immaterial and impertinent as judged by the current state of the pleadings.”

By Matthew Heller
7/30/10