By Jennifer Armstrong
August 18, 2009 at 12:26 PM EDT

Eric Dane’s lawyer says a video of the Grey’s Anatomy star and his wife, actress Rebecca Gayheart, frolicking nude with another woman is “not a ‘sex tape'” and warned that it should not be used for commercial purposes, reports. A Monday statement from attorney Marty Singer says: “This is simply a private, consensual moment involving a married couple, shot several years ago, which was never intended to be seen by the public. Although the participants are nude, the tape is not a ‘sex tape.’ It is a private tape made for only my clients’ personal use, and nobody has the right to exploit it. If anyone exploits the tape, they will be violating my clients’ rights and will be exposed to significant liability.” The third person in the video is reportedly Miss Teen USA 2002 Kari Anne Peniche, who lost the title after posing for Playboy.