Written in Ink
Written in Ink

Thanks to comments from Clay Aiken and another round of stolen celebrity nudes, Gawker and Jezebel have both revisited the subject and this has prompted more cries of "remember Hulk Hogan", while the McSteamy thing must have been before most commenter's time.

Illustration for article titled Recapping McSteamy v. Gawker from 2009

In August of 2009, Gawker published a video of actor Eric Dane ("McSteamy" from Grey's Anatomy), his wife actress Rebecca Gayheart and former beauty queen/reality show personality Kari Ann Peniche cavorting nude around Peniche's home, in her bed and her tub. Originally an excerpt with their genitalia blurred was published to Gawker, while the uncensored video was posted to (then Gawker-owned) Fleshbot, the following day.

I don't think it's ever been publicly admitted exactly how Gawker got the video, except that it somehow involved Peniche and journalist/blogger/Crosstalk member Mark Ebner. (Ebner was credited in the original post as providing additional reporting and he has confessed to being the last link in the video's chain to Gawker. Prior to helping provide the McSteamy, Ebner had a hand in Gawker's acquisition of the Scientology indoctrination video featuring Tom Cruise.)


Peniche claims that country artist Mindy McCready stole her hard drive while they were on VH1's Celebrity Rehab, which is something the late singer admitted, while McCready implied that Peniche had given the video to Gawker because she wanted fame.

McCready, from an interview with country music website, The Boot;

Your 'Celebrity Rehab' roommate, Kari Ann Peniche, blamed you for leaking her provocative homemade video with Eric Dane and Rebecca Gayheart. What's your response to that accusation?

She is an extremely disturbed and very sick individual. The thing that she craves the most — to be famous, is also the worst thing for her, because she is such a sick person. I do want people to understand what happened in that situation is not at all the story that she's told, and everything that comes out of her mouth is complete and utter bull. I did nothing to her but try to help her, and all she did was steal from me and lie and try to use every situation she possibly could to be more famous and get more attention … I hope that she does get help, and I hope that she does get better.

Do you want to tell us your side of the story?

Kari Ann had copied my computer on her hard drive. She stole all my information. Not only did she steal every bit of my new record coming out, my phone, my bank account information … she also stole thousands of dollars from me. When I took those hard drives, I took them because my stuff was all over them. Never in a million years was I going to leave my entire life from my computer and everything personal to me at her house on those hard drives. I didn't even know what else was on there.

I went back to Florida and got a phone call a few days later from Eric Dane saying, "I understand you have a video that belongs to me," and I said, "I don't even know what you're talking about." I didn't know it was on there. He said, "How can we work this situation out?" I said, "I have no problem giving you whatever you want. You can have the hard drives back. I just want to get my information erased off of them."

Of course, you can never really erase anything. So I sent my computer person the hard drive and went to Eric Dane's lawyer's office. What they did was take the information that belonged to Eric and put it on his hard drive. They took Kari Ann's information on a separate hard drive. Those two hard drives that had information of mine were destroyed. We all signed the confidentiality agreement that said none of us would talk about what was on there, none of us had any other copies of it. Except, the day that Kari Ann was supposed to sign the agreement, she didn't show up. And the next day the video was on Gawker.com. And to this day, she still has not signed the confidentiality agreement. Eric Dane and I both know very much beyond any shadow of a doubt that I didn't have anything to do with that.


Dane and Gayheart sued Gawker and Ebner for copyright infringement, even though they did not file a copyright on the video until after it was published. Gaby Darbyshire, Gawker's attorney and COO until last year, outlined for PBS's MediaShift blog that the video was newsworthy, making it fair use, because Peniche had been on a reality show seeking treatment for a sex addiction and was reportedly a Hollywood madam. Gawker's original post, retrieved via the Wayback Machine said she was under investigation by the vice squad and after the video's publication, Ebner and McCready told Rush & Molloy that she had admitted being a madam, even turning tricks. (There was also a brief mention in the now-deleted video implying that Peniche had been paid to participate.)

Their claim of copyright infringement was a little less straightforward. They do get points for sometimes holding the camera themselves, so their part in the video's creation is beyond question, but the consensus is that for them to have been damaged, they would have had to have intended to release the video themselves and Gawker's publication reduced its value. Nothing indicates this was their intent, so an argument could be made that they did not suffer damages.


Almost a year later, Gawker settled with Dane and Gayheart. The settlement was rumored to be in the low six figures and as part of the deal, Gawker took down its copy of the video.

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