Gawker Is on Shaky Legal Ground Over Sarah Palin Book Excerpts


When media and gossip site Gawker posted pages from Sarah Palin's upcoming book America By Heart last week, it did so using images of the pages, not simply the text itself. Presumably, that was a way for the site to get around accusations it had infringed the copyright of Palin and her publisher, HarperCollins (NWS).

Indeed, the follow-up post to the excerpt originally contained a taunt to Palin that she should read pages about fair use under copyright law. "Or skip the totally boring reading and call one of your lawyers," the Gawker post said. "They'll walk you through it."

Instead, it appears Palin is having the last laugh, at least for now. HarperCollins sued Gawker late Friday for copyright infringement, and Saturday a federal judge ordered Gawker to take the pages down until a scheduled hearing takes place in New York Southern District Court on Nov. 30. (Politico posted the order here.) In a statement issued by the publisher, a HarperCollins spokeswoman said: "We see the ruling as a victory. Gawker shouldn't have posted this. It's a copyright infringement. We are defending our author and our publication."

Supreme Court Reversal

With America By Heart slated for release on Tuesday, it's easy to conclude that the legal action is less about principle and more about drumming up publicity for a book that, while expected to be successful, may not reach the sales plateaus of Palin's 2009 bestseller Going Rogue. But HarperCollins does have principle, or at least precedent, in its corner: Back in 1985, when it was still known as Harper & Row -- and several years before News Corp. bought the company -- it won a judgment against The Nation for publishing a 400-word, quote-heavy excerpt of former President Gerald Ford's memoir without permission, which jeopardized a deal the publisher had struck with Time magazine for exclusive first-serial rights.

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After an appeals court reversed the ruling on fair-use grounds, the case went all the way to the Supreme Court. The high court reversed the reversal, and the opinion as written by Justice Sandra Day O'Connor outlined why: The fair use doctrine did not apply to the unpublished work of an author, even a famous public figure like former President Ford, with significant potential interest in what he had to say about historic events. To quote from the ruling, "the copyright owner would have the right to control the first public distribution of an authorized copy. . .of his work."

Gawker can, and likely will, argue that other publications, such as the Associated Press, published excerpts from America By Heart in advance of the book's on-sale date. But the real question is whether, in light of the precedent set by the Supreme Court's 1985 ruling, it will be worth it for Gawker to fight this particular battle. Past precedent says it won't: After being sued by actors Rebecca Gayheart and Eric Dane for releasing a video of their sex tape with another woman, they and Gawker eventually settled for an undisclosed amount.

With the Palin book excerpts taken down, it seems likely that the Nov. 30 hearing will simply rubber-stamp a potential settlement -- and be an opportunity for both sides to proclaim victory. Of course, HarperCollins is likely quietly hoping that the added publicity helps propel America By Heart up the holiday bestseller lists.