Zacchini v Scripps-Howard Broadcast Co.

Zacchini v Scripps-Howard Broadcasting Co.
433 U.S. 562 (1977)
Supreme Court of the United States

A reporter for a television broadcasting station (Scripps) attended a county fair where an entertainer (Zacchini) performed a 15 second act where he is shot from a cannon into a net 200 feet away (human cannonball act). Zacchini performed this act on a regular basis at the fair in a fenced area where people attending the fair, who were not charged extra for viewing, watched from grandstands. Zacchini noticed the reporter was carrying a movie camera and asked him not to film the performance. Although the reporter complied then, he returned the following day as instructed by his producer and videotaped the entire act. The 15 second film clip was shown on the 11 o'clock news program that night, together with favorable commentary.

Zacchini brought an action for damages in an Ohio trial court where Scripps was granted summary judgment. The Court of Appeals of Ohio reversed. The majority held that petitioner's complaint stated a cause of action for conversion and for infringement of a common-law copyright, and one judge concurred in the judgment on the ground that the complaint stated a cause of action for appropriation of petitioner's "right of publicity" in the film of his act. All three judges agreed that the First Amendment did not privilege the press to show the entire performance on a news program without compensating petitioner for any financial injury he could prove at trial.

The Supreme Court of Ohio reversed the court of Appeals stating "a TV station has a privilege to report in its newscasts matters of legitimate public interest which would otherwise be protected by an individual's right of publicity, unless the actual intent of the TV station was to appropriate the benefit of the publicity for some non-privileged private use, or unless the actual intent was to injure the individual." The Supreme Court of the United States granted certiorari and reversed the Supreme Court of Ohio.

Whether the First and Fourteenth Amendments immunized respondent from damages for its alleged infringement of petitioner's state-law "right of publicity."

The lower courts relied on case law interpreting the first amendment news privilege broadly. However, the cases interpreted the privilege in the context of privacy actions, rather than publicity actions. The court distinguished the two types of actions noting that in privacy actions, the harm is personal, whereas in publicity actions the harm is business in nature. The court determined that, while the news privilege still exists in publicity actions, it should not be interpreted as broad. In this case, the reporter may well have commented on the act without liability, and possibly even shown a still photo. However, since the act, which was the source of the entertainer's income, was appropriated in full without compensation, the news privilege does not immunize the reporter. The court concluded that where the press "appropriate" an act in its entirety, that is the source of ones livelihood and a product of their labor, and display it to the public without compensation to the performer, the first and fourteenth amendment do not require immunity for the press.

The majority goes on to support its holding with the policy reasons upholding a right of publicity. Similar to patent law, the right of publicity servers the foster investment in socially beneficial skills. The court further noted the underlying principal of the right of publicity is preventing unjust enrichment. Since the entertainer had expended time and energy to cultivate this skill, the value of which is derived from the entertainers exclusive control, appropriating the act in full takes away the entertainers opportunity to charge an admission fee.

The dissent contends that majority opinion does not set a standard by which future decisions may comfortably rest their decisions. Additionally, the implications of the majority's holding will have the effect of stifling at least some reporting on newsworthy events, in which case, the public loses. The dissent concludes that, rather than making the quantity of appropriation determinative, if the appropriation is used for routine news program, the first and fourteenth amendments should immunize the station from right of publicity suits absent a showing of commercial exploitation.

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