The creation and proliferation of these tapes have launched careers and lawsuits alike, with two cases--one regarding a celebrity having sex on tape and another allegedly posting a video of a rival’s risqué foray--making recent headlines.
Reports show rapper 50 Cent, the stage name for Curtis Jackson, allegedly posted a video of rival rapper Rick Ross having sex with his now ex-girlfriend Lastonia Leviston in an effort to embarrass Ross. Earlier this month, Supreme Court jurors in Manhattan heard testimony regarding the timeline of the videos posting, the fallout and the intent of the parties involved.
In another case, professional wrestler Hulk Hogan, the stage name of Terry Bollea, is suing the celebrity news outlet Gawker, for posting a video of Hogan having sex with Heather Clem, the wife of Hogan’s friend. That trial, which could be the end to a long and twisted road of litigation, will take place early next month in Florida.
The Hollywood Reporter noted this will be the first ever celebrity sex tape trial to make it to a jury. Gawker claims to be a “one-stop guide to media and pop culture” and is “the place you come to learn the real story—the account you won't (or can't) find anywhere else.”
Gawker Editor-in-Chief Max Read enumerated his hopes for the 2015 direction of the news site in a post from December, which highlight the fast-paced, yet accurate and relevant nature of the site.
“[Our] confidence allows us to take risks and gives the site the kind of energy and—for lack of a better word—glee that it should have. We've done a good job of working through the insecurities and second-guesses that have made us hesitate, hold back, or otherwise fail stories at various times this year; the next step is to work that confidence, adventurousness, and energy into a coherent vision of the site and the world.”
At the heart of both cases are the intentions of those who distributed the videos and the impact that distribution has on the participants. According to reports, Gawker representatives are willing to take a gamble in court and risk a substantial sum as a result of their belief the video of Hulk Hogan is newsworthy, considering Hogan’s celebrity and that he has made public comments about his sex life and relationship with Clem.
Hogan claims emotional distress and publicity rights violations as a result of the video’s release, according to the Reporter.
Similarly, the subject and plaintiff of the tape in the 50 Cent suit is reportedly suffering negatively from her encounter being made public. Leviston does not, though, hold the same public stature as Hogan, making the case an entirely different animal.
The plaintiffs’ ability to show they’ve been legally, measurably wronged hinges on where the judges and juries draw the line on what’s fair game, what should be public and what constitutes damage.
Gawker stands to commercially benefit from providing celebrity content that gets the attention of the public, even if they did not have Hogan’s expressed consent to use it, but their distribution of the video may be protected by its newsworthiness.
Some have speculated the feud between 50 Cent and Ross may have been a profitable one and the use of the tape to exacerbate that feud was strategic. According to information from the Digital Media Law Project, one may seek legal recourse if ones likeness will be used for an “exploitative purpose,” and it is up to the courts to hash out where the line gets drawn.
“In most states, you can be sued for using someone else's name, likeness, or other personal attributes without permission for an exploitative purpose. Usually, people run into trouble in this area when they use someone's name or photograph in a commercial setting, such as in advertising or other promotional activities.”
Other factors must also be weighed. “In the case of celebrities, there is the added issue of the right to publicity,” said Julie Turner, partner at California law firm Turner Boyd, which specializes in intellectual property. Broadly, the right to publicity allows individuals to control their identity with respect to commercial use.
Newsworthiness and public relevance are also key determining factors. The Law Project notes: “You generally cannot be held liable for using someone's name, likeness, or other personal attributes in connection with reporting or commenting on matters of public interest.
Many courts view this as a constitutional privilege based on the First Amendment, and some states have statutes explicitly exempting news reporting and commentary on public issues from liability. It is not always easy to determine what will qualify as news or legitimate commentary, especially on the Internet.
There are two exceptions to this, though; first, the personal content must have a “reasonable relationship” with the news item addressed and second, a Supreme Court ruling held that an “entire performance” may not be rebroadcast even if the performance is in fact newsworthy.