ZACCHINI v. SCRIPPS-HOWARD BROADCASTING CO.

SUPREME COURT OF THE UNITED STATES
433 U.S. 562
June 28, 1977; as amended

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, J, joined.  POWELL, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JL, joined. STEVENS, J., filed a dissenting opinion.

MR. JUSTICE WHITE delivered the opinion of the Court.

Petitioner, Hugo Zacchini, is an entertainer.  He performs a "human cannonball" act in which he is shot from a cannon into a net some 200 feet away.  Each performance occupies some 15 seconds.  In August and September 1972, petitioner was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio.  He performed in a fenced area, surrounded by grandstands, at the fair grounds.  Members of the public attending the fair were not charged a separate admission fee to observe his act.

On August 30, a free-lance reporter for Scripps-Howard Broadcasting Co', the operator of a television broadcasting station and respondent in this case, attended the fair.  He carried a small  movie camera.  Petitioner noticed the reporter and asked him not to film the performance.  The reporter did not do so on that day; but on the instructions of the producer of respondent's daily newscast, be returned the following day and videotaped the entire act.  This film clip, approximately 15 seconds in length, was shown on the I I o'clock news program that night, together with favorable commentary.

 The script of the commentary accompanying the film clip read as follows:
"This now is the story of a true spectator sport the sport of human cannonballing... in fact, the great Zacchini is about the only human cannonball around, these days just happens that, where he is, is the Great Geauga County Fair, in Burton and believe me, although it's not a long act, it's a thriller and you really need to see it in person to appreciate it...."

Petitioner then brought this action for damages, alleging that he is "engaged in the entertainment business," that the act he performs is one "invented by his father and... performed only by his family for the last fifty years," that respondent "showed and commercialized the film of his act without his consent," and that such conduct was an "unlawful appropriation of plaintiff s
professional property."   Respondent answered and moved for summary judgment, which was granted by the trial court.

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.

Like the concurring judge in the Court of Appeals, the Supreme Court of Ohio rested petitioner's cause of action under state law on his "right to publicity value of his performance."   The opinion syllabus, to which we are to look for the rule of law used to decide the case, declared first that one may not use for his own benefit the name or likeness of another, whether or not the use or benefit is a commercial one, and second that respondent would be liable for the appropriation, over petitioner's objection and in the absence of license or privilege, of petitioner's right to the publicity value of his performance.   The court nevertheless gave judgment for respondent because, in the words of the syllabus:

"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."


We granted certiorari to consider an issue unresolved by this Court: whether the First and Fourteenth Amendments immunized respondent from damages for its alleged infringement of petitioner's state-law "right of publicity."  Insofar as the Ohio Supreme Court held that the First and Fourteenth Amendments of the United States Constitution required judgment for respondent, we reverse the judgment of that court.

II

The Ohio Supreme Court held that respondent is constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose.  If under this standard respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, we would have a very different case.  But petitioner is not contending that his appearance at the fair and his performance could not be reported by the press as newsworthy items.  His complaint is that respondent filmed his entire act and displayed that film on television for the public to see and enjoy.  This, he claimed, was an appropriation of his professional property.  The Ohio Supreme Court agreed that petitioner had "a right of publicity" that gave him "personal control over commercial display and exploitation of his personality and the exercise of his talents." This right of "exclusive control over the publicity given to his performances" was said to be such a "valuable part of the benefit which may be attained by his talents and efforts" that it was entitled to legal protection.  It was also observed, or at least expressly assumed, that petitioner had not abandoned his rights by performing under the circumstances present at the Geauga County Fair Grounds.

The Ohio Supreme Court nevertheless held that the challenged invasion was privileged, saying that the press "must be accorded broad latitude in its choice of how much it presents of each story or incident, and of the emphasis to be given to such presentation.  No fixed standard which would bar the press from reporting or depicting either an entire occurrence or an entire discrete  art of a public performance can be formulated which would not unduly restrict the 'breathing room' in reporting which freedom of the press requires.  " Under this view, respondent was thus constitutionally free to film and display petitioner's entire act.

The differences between [the "right of privacy" and the "right of publicity"] are important.  First, the State's interests in providing a cause of action in each instance are different.  "The interest protected" in permitting recovery for placing the plaintiff in a false light "is clearly that of reputation, with the same over-tones of mental distress as in defamation." By contrast, the State's interest in permitting a "right of publicity" is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.  As we later note, the State's interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation.  Second, the two torts differ in the degree to which they intrude on dissemination of information to the public.  In "false-light" cases--the only way to protect the interests involved is to attempt to minimize publication of the damaging matter, while in "right of publicity" cases the only question is who gets to do the publishing.  An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as he gets the commercial benefit of such publication.  Indeed, in the present case petitioner did not seek to enjoin the broadcast of his act; he simply sought compensation for the broadcast in the form of damages.

Time, Inc. v. Hill, New York Times, Metromedia, Gertz, and Firestone all involved the reporting of events; in none of them was there an attempt to broadcast or publish an entire act for which the performer ordinarily gets paid.  It is evident, and there is no claim here to the contrary, that petitioner's state-law right of publicity would not serve to prevent respondent from reporting the newsworthy facts about petitioner's act.  Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent.  The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner.  There are ample reasons for reaching this conclusion.

The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance.  As the Ohio court recognized, this act is the product of petitioner's own talents and energy, the end result of much time, effort, and expense.  Much of its economic value lies in the "right of exclusive control over the publicity given to his performance"; if the public can see the act free on television, it will be less willing to pay to see it at the fair.' The effect of a public broadcast of the performance is similar to preventing petitioner from charging an admission fee.  "The rationale for [protecting the right of publicity] is the straight-forward one of preventing unjust enrichment by the theft of good will.  Moreover, the broadcast of petitioner's entire performance, unlike the unauthorized use of another's name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner's ability to earn a living as an entertainer.  Thus, in this case, Ohio has recognized what may be the strongest case for a "right of publicity" --involving, not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place.

Of course, Ohio's decision to protect petitioner's right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in his act; the protection provides an economic incentive for him to make the investment required to produce a performance of interest to the public.  This same consideration underlies the patent and copyright laws long enforced by this Court.

There is no doubt that entertainment, as well as news, enjoys First Amendment protection.  It is also true that entertainment itself can be important news.  Time, Inc. v. Hill.  But it is important to note that neither the public nor respondent will be deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized.  Petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it.  Respondent knew that petitioner objected to televising his act but nevertheless displayed the entire film.

We conclude that although the State of Ohio may as a matter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not require it to do so. (It is possible, of course, that respondent's news broadcast increased the value of petitioner's performance by stimulating the public's interest in seeing the act live.  In these circumstances, petitioner would not be able to prove damages and thus would not recover.  But petitioner has alleged that the broadcast injured him to the extent of $25,000, and we think the State should be allowed to authorize compensation of this injury if proved.)

Reversed.
 

DISSENT: MR. JUSTICE POWELL, with whom MR.  JUSTICE BRENNAN and MR.JUSTICE MARSHALL join, dissenting.

Disclaiming any attempt to do more than decide the narrow case before us, the Court reverses the decision of the Supreme Court of Ohio based on repeated incantation of a single formula: "a performer's entire act." The holding today is summed up in one sentence:

"Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent."
I doubt that this formula provides a standard clear enough even for resolution of this case.   In any event, I am not persuaded that the Court's opinion is appropriately sensitive to the First Amendment values at stake, and I therefore dissent.

Although the Court would draw no distinction, I do not view respondent's action as comparable to unauthorized commercial broadcasts of sporting events, theatrical performances, and the like where the broadcaster keeps the profits.  There is no suggestion here that respondent made any such use of the film.  Instead, it simply reported on what petitioner concedes to be a newsworthy event, in a way hardly Surprising for a television station - by means of film coverage.  The report was part of an ordinary daily news program, consuming a total of 15 seconds.  It is a routine example of the press fulfilling the informing function so vital to our system.

The Court's holding that the station's ordinary news report may give rise to substantial liability has disturbing implications, for the decision could lead to a degree of media self-censorship.  Hereafter, whenever a television news editor is unsure whether certain film footage received from a camera crew might be held to portray an "entire act," he may decline coverage even of clearly newsworthy events - or confine the broadcast to watered-down verbal reporting, perhaps with an occasional still picture.  The public is then the loser.  This is hardly the kind of news reportage that the First Amendment is meant to foster.

(Although the record is not explicit, it is unlikely that the "act" commenced abruptly with the explosion that launched petitioner on his way, ending with the landing in the net a few seconds later.  One may assume that the actual firing was preceded by some fanfare, possibly stretching over several minutes, to heighten the audience's anticipation: introduction of the performer, description of the uniqueness and danger, last-minute checking of the apparatus, and entry into the cannon, all accompanied by suitably ominous commentary from the master of ceremonies.  If this is found to be the case on remand, then respondent could not be said to have appropriated the "entire act" in its 15-second newsclip - and the Court's opinion then would afford no guidance for resolution of the case.  Moreover, in future cases involving different performances, similar difficulties in determining just what constitutes the lientire act" are inevitable.)

 In my view the First Amendment commands a different analytical starting point from the one selected by the Court.  Rather than begin with a quantitative analysis of the performer's behavior - is this or is this not his entire act? - we should direct initial attention to the actions of the news media: what use did the station make of the film footage?  When a film is used, as here, for a routine portion of a regular news program, I would hold that the First Amendment protects the station from a "right of publicity" or "appropriation" suit, absent a strong showing by the plaintiff that the news broadcast was a subterfuge or cover for private or commercial exploitation.

Since the film clip here was undeniably treated as news and since there is no claim that the use was subterfuge, respondent's actions were constitutionally privileged.  I would affirm.

Exploring Constitutional Conflicts