Does Quentin Tarantino Have a Case Against Gawker? (Analysis)

This story first appeared in the Feb. 7 issue of The Hollywood Reporter magazine.

Quentin Tarantino always has had a taste for vengeance. Now he's going to war with Gawker over the Jan. 23 leak of a draft of his The Hateful Eight screenplay online. Tarantino, who vowed not to film the Western after its unfinished 146-page script began circulating around Hollywood, sued the gossip site Jan. 27, claiming its "predatory" act of linking to another site hosting the script "went too far" and contributed to copyright infringement. The legal drama highlights Hollywood's increasing alarm -- some might say paranoia -- over maintaining the secrecy of high-profile film and television projects.

"This is a violation of his creative process," Tarantino lawyer Marty Singer tells The Hollywood Reporter in an interview. "This is his material. He has the right to distribute and exploit it."

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Tarantino isn't alone in his anger. Scripts and unfinished film and TV footage now regularly appear online, much to the frustration of studios and talent. In 2010, 20th Century Fox filed a $15 million lawsuit against a woman alleged to have uploaded 100 scripts, including an unreleased X-Men sequel. The suit later was withdrawn (and most of the scripts remain online), but studios since have begun to take NSA-level precaution to protect privacy.

Watermarking of screenplays has become standard in Hollywood. Director Roland Emmerich (White House Down, 2012) has used holograms on his scripts to prevent copying. Some studios now employ Snapchat-type technology that allows readers a set time before scripts disappear from their computers. Still, quick-typing assistants often are able to transcribe the most in-demand material.

Sources say Christopher Nolan required prospective actors in this summer's Interstellar to read the script at his home in Los Angeles, and some filmmakers often require actors to sit in monitored conference rooms to read A-list scripts (or merely portions of scripts) without their representatives. The audition process for J.J. Abrams' upcoming Star Wars reboot doesn't even involve full scripts but rather "sides," industry parlance for a scene or two. Casting directors are said to be using a program called Pix, which gives actors a time-specific password to access a nonprintable PDF with the sides. According to one insider, when Warner Bros. was wooing Ben Affleck to play Batman in its Man of Steel sequel, the studio sent him the script in a briefcase handcuffed to an assistant.

By comparison, Tarantino's handling of Hateful Eight was rather lax. The director said he sent the draft to "six people," including actors Bruce Dern, Michael Madsen and Tim Roth, and he suspects Dern's CAA agents were the source of the leak (CAA denies this). Without identifying marks on the scripts, the leaker likely never will be identified. "I was shocked he didn't watermark it," says one executive.

The fact that Tarantino didn't take security measures could come up in the lawsuit. Gawker, run by founder Nick Denton, not only is denying it uploaded the script to file-sharing website, but in a post on the site on Jan 30, editor John Cook blamed Tarantino for "deliberately" turning the leak into news by revealing it to the media and saying, "I do like the fact that everyone eventually posts it, gets it and reviews it on the net." Wrote Cook on Gawker, "Quentin Tarantino wanted The Hateful Eight to be published on the Internet."

"They took his statement out of context," Singer counters. "Quentin did not want this script to be pirated. Gawker should not be allowed to participate in piracy."

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By equating the script leak to a news event, Gawker is setting up a "fair use" defense in which it could argue that linking to the full document was part of the site's diligent reporting of a newsworthy story. But even if Tarantino did make the script leak a news story by going public with his displeasure, that won't necessarily absolve Gawker. A judge will analyze whether it contributed to copyright infringement by sharing the link. A host of high-profile legal cases, including ones involving Napster and Grokster, have explored the issue of "secondary liability," meaning those who aid others can be held responsible. Fewer cases have examined "contributory infringement" in the linking context.

One such case was adult entertainment publisher Perfect 10's lawsuit against Google for indexing, linking to and providing thumbnail images of its nude photos. An appeals court ruled that Google couldn't be sued for direct copyright infringement but left open the possibility of contributory liability if Google knew it was linking to infringing materials. After the dispute was remanded to a trial court, Perfect 10 offered $25,000 to anyone who could provide evidence that Google "aided or condoned copyright infringement." Eventually, Perfect 10 dropped the suit.

Tarantino likely will argue that Gawker knew the link it posted would direct readers to commit infringement. "Their headline boasts ... 'Here,' not someplace else, but 'Here,' " says the lawsuit, filed in federal court in Los Angeles. "The article … brazenly encourages Gawker visitors to read the screenplay illegally with the invitation to 'Enjoy!' it."

Adds Singer: "The sole purpose of the article was to get you to click on the script."

Because of this, copyright attorney Elliot Alderman believes Tarantino has the upper hand. "Gawker is doing more than linking," he says. "Pointing out where the script is, using language to draw people in and exploiting something that is otherwise private for the purpose of increasing hits -- that's inducement."

However, other legal observers believe Tarantino has a tougher case. Litigator Michael Elkin, who once defended hip-hop magazine The Source when it published a tape of a pre-fame Eminem making racially derogatory comments, says Tarantino should focus on the fact that Gawker linked to the entire Hateful Eight script instead of merely running excerpts with commentary. That would help counter Gawker's fair use argument.

But Elkin notes that Gawker's primary business isn't about providing file-sharing links, it's about covering news events in a provocative way: "This is 2014 technology we're talking about," says Elkin. "In the course of reporting a story about a notorious director, they were just making available something that was already out there in the most expedient fashion."