Zacchini v. Scripps-Howard Broadcasting Co.
433 U.S. 562 (1977)
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Rule of Law:
The First and Fourteenth Amendments do not immunize the press from liability for damages under state right of publicity law when it broadcasts a performer's entire act without consent, as a state's interest in protecting the economic value of a performance outweighs the press's constitutional privilege in such circumstances.
Facts:
- Hugo Zacchini performs a 'human cannonball' act that lasts approximately 15 seconds.
- Zacchini was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio.
- His performance took place in a fenced area, surrounded by grandstands.
- A freelance reporter for Scripps-Howard Broadcasting Co. attended the fair with a movie camera.
- Zacchini noticed the reporter and asked him not to film the performance, and the reporter complied that day.
- The following day, on the instructions of his news producer, the reporter returned and videotaped Zacchini's entire 15-second act.
- Scripps-Howard broadcast the entire film clip of the act on its 11 o'clock news program that night.
Procedural Posture:
- Hugo Zacchini sued Scripps-Howard Broadcasting Co. in an Ohio trial court for unlawful appropriation of his professional property.
- The trial court granted summary judgment for Scripps-Howard.
- Zacchini, as appellant, appealed to the Court of Appeals of Ohio.
- The Court of Appeals of Ohio reversed the trial court's judgment, holding that Zacchini had stated a valid cause of action.
- Scripps-Howard, as appellant, appealed to the Supreme Court of Ohio.
- The Supreme Court of Ohio reversed the judgment of the Court of Appeals, finding that the First Amendment privileged the broadcast.
- Zacchini petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
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Issue:
Does the First Amendment's protection of freedom of the press immunize a television broadcaster from liability for damages under state 'right of publicity' law for broadcasting a performer's entire act without their consent?
Opinions:
Majority - Mr. Justice White
No. The First and Fourteenth Amendments do not immunize a broadcaster from liability for damages for broadcasting a performer's entire act without consent. The state of Ohio's interest in protecting a performer's right of publicity is analogous to the goals of patent and copyright law, which provide an economic incentive for individuals to produce creative works of public interest. Broadcasting the entire act poses a substantial threat to the economic value of the performance, as the public, having seen it for free on television, would be less willing to pay to see it in person. This appropriation of the 'entire act' is distinct from merely reporting on a newsworthy event, and it goes to the heart of the performer's ability to earn a living.
Dissenting - Mr. Justice Powell
Yes. The First Amendment should immunize the broadcaster in these circumstances. The broadcast was a routine, 15-second news report on a newsworthy event, not an unauthorized commercial exploitation. The majority's 'entire act' standard is vague and will lead to media self-censorship, as editors may avoid broadcasting clearly newsworthy events for fear of liability. The proper analysis should focus on the media's use of the footage; a routine news report should be protected unless it is a subterfuge for commercial exploitation.
Dissenting - Mr. Justice Stevens
This opinion does not directly answer the issue. The Ohio Supreme Court's decision was ambiguous as to whether it rested on state common law or federal constitutional grounds. The case should be remanded to the state court for clarification of its holding before the U.S. Supreme Court decides the federal constitutional issue.
Analysis:
This case establishes a significant boundary for the First Amendment's protection of the press by recognizing the strength of a state-law right of publicity. It distinguishes between reporting about an event and appropriating the commercial value of the event itself. By analogizing the right of publicity to copyright, the Court affirmed that performers have a protectable proprietary interest in their performance. This decision requires media organizations to consider licensing or consent before broadcasting a complete performance, creating a durable precedent that protects the economic interests of entertainers and other creators from wholesale appropriation under the guise of news reporting.
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