Why Gawker will beat Quentin Tarantino over his leaked script

By Adam L. Penenberg , written on January 28, 2014

From The News Desk

If I were John Cook, editor of the famously dyspeptic Gawker, I would be irritated -- and not just because some thoughtless oaf didn't shovel his sidewalk after a snow storm, which once inspired Cook to post a raucously entertaining rant. Here you have a media site being sued by a Hollywood celebrity, and some outlets reporting on it are getting their facts wrong and not even bothering to correct their articles after the fact. It's funny, too, because Gawker is, well, Gawker, and you'd better be prepared to suffer the slings and arrows of outrageous verbal abuse if you screw up the story.

Briefly, here's what happened: Last week, someone leaked a script titled "The Hateful Eight" that Quentin Tarantino completed in December. When the Pulp Fiction-Kill Bill-Django auteur found out, he became so irate he claimed he wouldn't make the movie. (Spoiler alert: Lots of people die horrible, bloody deaths.) Not long after, Defamer, a Gawker media property, published a post that linked to the script, which had been uploaded to Scribd and was available on at least one other site (an anonymous file uploader). Note that Defamer didn't publish the 146-page opus on its site, it simply linked to the script, which was being hosted elsewhere. Tarantino's lawyers have sued, demanding $1 million in damages and any profits Gawker has made from publishing its post.

Yet, here's a sample of some of the coverage (emphasis mine):

Quentin Tarantino has filed a lawsuit against Gawker Media claiming copyright infringement after the web site posted a copy of his leaked script, 'The Hateful Eight.' –Variety

Filmmaker Quentin Tarantino will file a lawsuit against Gawker after a leaked script for his next movie was posted on the site's Defamer vertical, according to a report. –Mashable

The Oscar-winning screenwriter of Pulp Fiction and Django Unchained has filed a contributory copyright infringement lawsuit against Gawker Media for publishing his script for the planned Western 'The Hateful Eight,' a project he says he has now shelved because of the leak. – Entertainment Weekly

Quentin Tarantino is suing Gawker Media for allegedly printing and publicizing his leaked script 'The Hateful Eight.' –Time

Director Quentin Tarantino sued Gawker Media for copyright infringement Monday in California federal court over the digital media company's publication of a leaked screenplay for his upcoming Western 'The Hateful Eight,' blasting the company for 'predatory journalism.' –Law360 (a Lexis-Nexis company)

After years of making movies about it, Quentin Tarantino is finally getting revenge in real life.

The director is suing Gawker Media after Gawker published his most recent script, which has been circulating among agents and actors since last week. – Daily Caller Worse, Mashable, for one, got its facts wrong even as it cited a Hollywood Reporter story that got them right.

Then there's this head-scratcher of a Fox News post, which cites experts who claim Tarantino has a good shot at winning his case.

Larry Bodine, publications director for The National Trial Lawyers Association, noted that the script is Tarantino’s property and Gawker had no right to publish it without his permission. And sports and entertainment industry consultant Michael D. Grippo agreed, saying Gawker tried to benefit monetarily from a direct posting of the script on its website.
Even the experts that Fox News cited in its story are basing their opinions on bad information. Not only did Gawker/Defamer not publish Tarantino's script, it's not being sued for copyright infringement. Tarantino is suing Gawker for "contributory copyright infringement." If copyright infringement is Tarantino's legal tactic, he'll have to go after the sites that actually posted the script.

In a response, Cook says a reader tipped off Gawker that the script was available on the AnonFiles site. Nevertheless, Tarantino's lawyers are alleging in their complaint that Gawker Media "crossed the journalistic line by promoting itself to the public as the first source to read the entire Screenplay illegally."

The proof? Apparently it's all in Defamer's headline: "Here Is the Leaked Quentin Tarantino Hateful Eight Script."

According to the complaint, which Hollywood Reporter has graciously made available, "Their headline boasts... '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."

By "brazenly anonymous URL" I suspect Tarantino's lawyers are implying that somehow Gawker is behind the rogue posting. Good luck proving that in court.

Now, I am no Gawker apologist or advocate, and find Gawker and some of its other affiliated sites to be absolutely vile at times. On the other hand I've met John Cook -- he offered a presentation on Freedom of Information Act requests to a graduate journalism class I taught at NYU -- and think he's a fantastic reporter and writer. Why he works for Gawker… Oh, never mind. It's none of my business. Gawker has also in the past gone too far with posting copyrighted material -- Lena Dunham's book proposal, for instance, which Denton admitted the site ran too much of.

Still, Gawker should win this fight. It had better, because if it doesn't, other media sites could be vulnerable. If I were to point out that earlier today I went to the Defamer article, clicked on the link and downloaded the script to see if it still worked, would I put Pando in legal cross hairs because I publicized a post on another site that pointed to a script being hosted on a third site?

I'm not saying I did, and the link now results in a 404 error message. Still, it's amusing that Tarantino hand-numbered each page of the script, as if he didn't know how to use whatever software program he writes scripts with. Also he didn't use traditional acts to break up the story, instead hand-titling each chapter, which have names like Chapter One: "LAST STAGE TO RED ROCK, Chapter Two: SON OF A GUN".

Son of a gun? Well, it's a first draft.

In the complaint, Tarantino's lawyers' claim that Gawker is guilty of directing "the general public on where and how to obtain and download an otherwise unknown unauthorized copyright infringing copy of the unreleased screenplay." What's more, Tarantino "has suffered irreparable harm, and will continue to suffer additional irreparable harm until or unless" Gawker's "infringement is enjoined by this court."

Somehow I doubt that. In the end, even if Tarantino's lawyers take this to court and somehow prevail, Gawker won't have to shell out much money. Before the Defamer's article, Tarantino had already said publicly he wouldn't make the film, so now damages can only be accessed on Tarantino being able to sell an unmade film screenplay to a publisher.

About the suit, Cook says:

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. Gawker and Defamer are news sites, and our publication of the link was clearly connected to our goal of informing readers about things they care about. As far as I can tell (but I'm no lawyer!), no claim of contributory infringement has prevailed in the U.S. over a news story. We'll be fighting this one.
Meanwhile, Gawker, which I learned from the complaint is based in the Cayman Islands, counts more than 40 million visitors a month. I'm sure Nick Denton isn't too worried. Why should he be? It just means more traffic.

[Image adapted from Thinkstock]