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A videographer taped the actor cursing Taylor Swift, then leaked it to the celebrity news site.
By Eriq Gardner
Legal Editor-at-Large
For those leaking to TMZ, beware: If the situation heads south, and the celebrity news service faces legal heat, TMZ will sue its sources.
On Friday, TMZ and its corporate parent Warner Bros. filed a complaint in California federal court against Jacob Miller, said to be the one who provided the site with video showing Jared Leto critiquing Taylor Swift’s work admiringly before exclaiming, “I mean, f— her. I don’t give a f— about her.”
Leto apologized and then sued TMZ for copyright infringement, blasting the news website for invading his privacy by publishing a “stolen” video. Leto’s lawsuit also put him in court against Warner Bros., which is distributing Suicide Squad, starring Leto as the Joker.
TMZ and Warners have now tapped Kelly Klaus — the same attorney who represented Warner/Chappell in the battle over whether “Happy Birthday” was in the public domain — to defend the legal action over the Leto footage. Their initial move is an attempt to pin responsibility on Miller.
“A the heart of this lawsuit is a straightforward question,” opens a complaint by TMZ and Warner Bros. “Who owned the copyright in the allegedly infringed video on December 4, 2015? On that date, Third-Party Defendant Jacob Guy Miller represented to (TMZ affiliate) EHM that he created the video, that he had the right to and would sell it to EHM, and that he was free to do so ‘without any obligations to any third party.’”
The lawsuit then sets up two paths for exploration.
According to the complaint, “If Mr. Miller was the videographer (as he said he was), and he had the right to transfer the work on December 4 (as he represented), then Plaintiff’s infringement claim necessarily fails, because Mr. Miller irrevocably gave EHM the right to publish the work as of that date. If [Leto’s company Sisyphus Touring] owned the copyright on December 4, then Mr. Miller breached his representations, and he is liable for any judgment that may issue against [TMZ].”
While it’s unusual for news organizations to sue sources, many don’t pay as TMZ does. This often prompts a dance between a TMZ producer and the source, and sometimes a contract results.
In this instance, Miller is said to have come forward with word that he had a video. He was asked to share a portion, and after TMZ saw the Swift excerpt, Miller was told of TMZ’s interest in purchasing and publishing it. (According to Leto’s lawsuit, the videographer was promised $2,000.)
On Dec. 4, an EHM rep sent an email to Miller confirming an agreement, according to the third party complaint. Miller was asked to reply, stating, “I agree.” He was also given a W-9 tax form and a written contract that stated, “By accepting this offer, you acknowledge that TMZ has agreed to make the Payment to you based on your representations to TMZ that you are able to enter into this agreement without any obligations to any third party.”
“Three minutes later, Mr. Miller responded by email to the EHM representative,” continues the TMZ lawsuit. “Mr. Miller stated in that email: ‘I agree. Sending video to Anthony,’ referring to TMZ employee Anthony Dominic. Mr. Miller also agreed to ‘send [the] forms back soon.’”
But TMZ never got a full contract back.
Miller may have had a crisis of conscience because according to Leto’s own lawsuit, TMZ was advised that the footage was stolen. Upon this warning from the Leto camp, TMZ “rushed to publish,” states Leto in his company’s legal action.
Fifteen minutes after the story went up, according to both complaints, Miller dashed off an email to his TMZ contact, urging, “Do not post the footage. I do not own it. I do not have permission.”
Nevertheless, TMZ is now pointing to what Miller said initially in its attempt to escape liability. (TMZ is also asserting the publishing of the video was fair use.)
The celebrity news service says that Leto’s “allegations of copyright ownership contradict Mr. Miller’s representations to EHM. [TMZ and Warner Bros.] deny that they are liable for copyright infringement for publishing the Taylor Swift Excerpt. Nevertheless, to the extent Third-Party Plaintiffs are adjudged to be liable to Plaintiff, they are entitled to seek recovery from Mr. Miller as his representations to EHM would necessarily be untrue.”
We’ve reached out to Miller about the lawsuit and will provide any response he has.
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