Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

Possible Scientology v. Gawker Empire copyright action

I attempted to leave the below comment at this thread on Gawker but it hasn’t yet appeared, so I’ll just post it here as well. The post includes a cease and desist letter from Ava Paquette and a reply by Gawker’s lawyer and VP, Gaby Darbyshire, claiming fair use.

A few points regarding fair use here. As others have pointed out, fair use is not quantifiable and is usually considered within a larger context (and varies court to court, minute to minute, etc.). One point in Denton’s favor is that the 9+ minute clip is part of a 1 hour video; it is an excerpt, despite the new life it’s taken on as ‘that creepy Tom Cruise video.’ That does help Denton’s fair use argument but I question how much; nine minutes is substantial, and the piece is uninterrupted by commentary. Publishing 1/6 of a medium size book would almost definitely not be considered fair use.

But Gaby Darbyshire’s response indicates that Denton plans to argue something more interesting: Because everyone was talking about the clip it somehow transformed itself into news, and can therefore be published as fair use. The problems with that argument are that (1) Denton helped turn it into news, and (2) there is a lack of case law supporting it. Indeed, the most obvious case on point works against Denton, that being Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997) (unlicensed broadcast of Reginald Denny beating during LA riots not fair use). So I don’t think this fair use argument will work if CSI decides to actually sue.

In Denton’s favor, it will be difficult for Scientology to show substantial damages, since the purpose of this video is by their own admission non-commercial, not to mention four years old. And while it’s obvious they’re being “damaged” in the sense that it’s airing is bad publicity for them, bad publicity isn’t calculated as damages in copyright law. Scientology can show enough damages to keep the suit from being dismissed, however, and since they’re not rational actors in the economic sense (they’ll spend $1000 in legal fees to get your $1 in order to either set a precedent or brand you a criminal), the possibility that they would bring a complex suit to bleed Denton of legal fees is real.

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