Miss Teen USA Kari Ann Peniche appears with the acting couple in a 12-minute video, which leaked online on Monday.
The trio are seen passing the camera around while they discuss each other's porn names. In one scene Dane filmed the two women in a bathtub.
Shortly after the tape appeared on Defamer.com, the Grey's Anatomy actor's lawyer Marty Singer released a statement threatening to sue anyone who published it, and insisting no sex took place.
He said, "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."
On Tuesday Peniche's manager David Weintraub echoed the sentiment in an interview Usmagazine.com. He described the video as "all done in good fun," adding, "This is not a sex tape. It's guys having fun, hanging out together. There is no sex involved in this."
Reports from TMZ.com suggest Peniche's former roommate and Celebrity Rehab co-star, troubled country singer Mindy McCready, stole the footage and leaked it to the press following an argument with the beauty queen.
Weintraub continues, "(Peniche is) sorry that somebody has stolen these things and put them out. That's the overall of it. Those are good friends of hers. It was in good fun and, unfortunately, now it's public record."
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