Adds [attorney] 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."
The four fair use factors are:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market.
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