Actors Eric Dane (known infamously as McSteamy from the ABC show Grey's Anatomy) and Rebecca Gayheart (the Noxzema girl from the 1990s) lost the right to statutory damages for copyright infringement over the infamous McSteamy video that features both of them in a threesome situation with Kari Ann Peniche. However, there is no sex in the clip. Just a lot of ahem, anatomy.
According to Mediapost, the couple filed lawsuit in federal court because Gawker posted a clip of them "partially and sometimes fully disrobed". The lawsuit alleges that there is copyright infringement. However, U.S. District Court Judge George Wu ruled that since the couple failed to register the copyright to the video before they commenced the lawsuit. Statutory damages for copyright infringement can range from $750-$150,000 per copyright violation.
Had Eric Dane and Rebecca Gayheart had the foresight to register their video prior to commencing the lawsuit, they could have collected statutory damages. Gawker claims that it is protected under the fair use doctrine.
McSteamy and his wife may not have won the battle over statutory damages, but they can win the war. If Eric Dane and Rebecca Gayheart convince the court that there is copyright infringement, they can still collect non-statutory damages. Non-statutory damages could include profits that Gawker has made off the video and actual damages. Unfortunately, since actual damages typically include lost licensing revenues, and the video does not seem like something the couple planned on licensing, recovery for the Grey's Anatomy star may not be so large after all.