Zacchini v. Broadcasting Company, SCRIPPS-HOWARD

CourtUnited States Supreme Court
Writing for the CourtWHITE
Citation53 L.Ed.2d 965,433 U.S. 562,97 S.Ct. 2849
Decision Date28 June 1977
Docket NumberNo. 76-577,SCRIPPS-HOWARD
PartiesHugo ZACCHINI, Petitioner, v. BROADCASTING COMPANY

433 U.S. 562
97 S.Ct. 2849
53 L.Ed.2d 965
Hugo ZACCHINI, Petitioner,

v.

SCRIPPS-HOWARD BROADCASTING COMPANY.

No. 76-577.
Argued April 25, 1977.
Decided June 28, 1977.

Syllabus

Petitioner's 15-second 'human cannonball' act, in which he is shot from a cannon into a net some 200 feet away, was, without his consent, videotaped in its entirety at a county fair in Ohio by a reporter for respondent broadcasting company and shown on a television news program later the same day. Petitioner then brought a damages action in state court against respondent, alleging an 'unlawful appropriation' of his 'professional property.' The trial court's summary judgment for respondent was reversed by the Ohio Court of Appeals on the ground that the complaint stated a cause of action. The Ohio Supreme Court, while recognizing that petitioner had a cause of action under state law on his 'right to the publicity value of his performance,' nevertheless, relying on Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456, rendered judgment for respondent on the ground that it 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. Held:

1. It appears from the Ohio Supreme Court's opinion syllabus (which is to be looked to for the rule of law in the case), as clarified by the opinion itself, that the judgment below did not rest on an adequate and independent state ground but rested solely on federal grounds in that the court considered the source of respondent's privilege to be the First and Fourteenth Amendments, and therefore this Court has jurisdiction to decide the federal issue. Pp. 566-568.

2. The First and Fourteenth Amendments do not immunize the news media when they broadcast a performer's entire act without his consent, and 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, or to film or broadcast a prize fight or a baseball game, where the promoters or participants had other plans for publicizing the event. Time, Inc. v. Hill, supra, distinguished. Pp. 569-579.

(a) The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance, since (1) if the public can see the act free on television it will be less willing

Page 563

to pay to see it at the fair, and (2) the broadcast goes to the heart of petitioner's ability to earn a living as an entertainer. Pp. 575-576.

(b) The protection of petitioner's right of publicity provides an economic incentive for him to make the investment required to produce a performance of interest to the public. Pp. 576-577.

(c) While entertainment, as well as news, enjoys First Amendment protection, and entertainment itself can be important news, 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. P. 578.

(d) Although the State 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. Pp. 578-579.

47 Ohio St.2d 224, 351 N.E.2d 454, reversed.

John G. Lancione, Fairview Park, Ohio, for petitioner.

Ezra K. Bryan, Cleveland, Ohio, for respondent.

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 freelance reporter for Scripps-Howard Broadcasting Co., the operator of a television broadcasting station and respondent in this case, attended the fair. He

Page 564

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, he returned the following day and videotaped the entire act. This film clip approximately 15 seconds in length, was shown on the 11 o'clock news program that night, together with favorable commentary.1

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.' App. 4-5. 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.

Page 565

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 the publicity value of his performance.' 47 Ohio St.2d 224, 351 N.E.2d 454, 455 (1976). The opinion syllabus, to which we are to look for the rule of law used to decide the case,2 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. Ibid. 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.' Ibid.

We granted certiorari, 429 U.S. 1037, 97 S.Ct. 730, 50 L.Ed.2d 747 (1977), 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 statelaw 'right of publicity.' Pet. for Cert. 2. Insofar as the Ohio Supreme Court held that the First and Fourteenth Amendments of the

Page 566

United States Constitution required judgment for respondent, we reverse the judgment of that court.

I

If the judgment below rested on an independent and adequate state ground, the writ of certiorari should be dismissed as improvidently granted, Wilson v. Loew's Inc., 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519 (1958), for '(o)ur only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.' Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S.Ct. 459, 463, 89 L.Ed. 789 (1945). We are confident, however, that the judgment below did not rest on an adequate and independent state ground and that we have jurisdiction to decide the federal issue presented in this case.

There is no doubt that petitioner's complaint was grounded in state law and that the right of publicity which petitioner was held to possess was a right arising under Ohio law. It is also clear that respondent's claim of constitutional privilege was sustained. The source of this privilege was not identified in the syllabus. It is clear enough from the opinion of the Ohio Supreme Court, which we are permitted to consult for understanding of the syllabus, Perkins v. Benguet Consolicated Mining Co., 342 U.S. 437, 441-443, 72 S.Ct. 413, 416-417, 96 L.Ed. 485 (1952),3 that in adjudi-

Page 567

cating the crucial question of whether respondent had a privilege to film and televise petitioner's performance, the court placed principal reliance on Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), a case involving First Amendment limitations on state tort actions. It construed the principle of that case, along with that of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), to be that 'the press has a privilege to report matters of legitimate public interest even though such reports might intrude on matters otherwise private,' and concluded, therefore, that the press is also 'privileged when an individual seeks to publicly exploit his talents while keepting the benefits private.' 47 Ohio St.2d, at 234, 351 N.E.2d, at 461. The privilege thus exists in cases 'where appropriation of a right of publicity is claimed.' The court's opinion also referred to Draft 21 of the relevant portion of Restatement (Second) of Torts (1975), which was understood to make room...

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377 practice notes
  • Fowler v. Board of Educ. of Lincoln County, Ky., Nos. 85-5815
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 21, 1987
    ...68 L.Ed.2d 671 (1981) (entertainment protected same as political or ideological speech); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578, 97 S.Ct. 2849, 2859, 53 L.Ed.2d 965 (1977) ("no doubt that entertainment ... enjoys First Amendment protection"). See also Abood v. Detroi......
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    • October 13, 1982
    ...Delaware v. Prouse, 440 U.S. 648, 651-653, 99 S.Ct. 1391, 1394-1395, 59 L.Ed.2d 660 (1979); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568, 97 S.Ct. 2849, 2854, 53 L.Ed.2d 965 (1977). 9. It also should be noted that the requirement that the good faith issue be presented to t......
  • Boehner v. McDermott, No. 98-7156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 24, 1999
    ...lawfully obtained trade secrets or with laws protecting proprietary interests in performances. See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 577-79 & n.13 (1977). Congress may provide remedies for the unauthorized publication of copyrighted material even if the publisher broke no......
  • City of Mesquite v. Aladdin Castle, Inc, No. 80-1577
    • United States
    • United States Supreme Court
    • February 23, 1982
    ...contention is correct, we may review the Court of Appeals' interpretation of federal law. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568, 97 S.Ct. 2849, 2853, 53 L.Ed.2d 965; Mental Hygiene Dept. v. Kirchner, 380 U.S. 194, 198, 85 S.Ct. 871, 874, 13 L.Ed.2d 753; Missouri......
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363 cases
  • Fowler v. Board of Educ. of Lincoln County, Ky., Nos. 85-5815
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 21, 1987
    ...68 L.Ed.2d 671 (1981) (entertainment protected same as political or ideological speech); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578, 97 S.Ct. 2849, 2859, 53 L.Ed.2d 965 (1977) ("no doubt that entertainment ... enjoys First Amendment protection"). See also Abood v. Detroi......
  • Illinois v. Gates, No. 81-430
    • United States
    • United States Supreme Court
    • October 13, 1982
    ...Delaware v. Prouse, 440 U.S. 648, 651-653, 99 S.Ct. 1391, 1394-1395, 59 L.Ed.2d 660 (1979); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568, 97 S.Ct. 2849, 2854, 53 L.Ed.2d 965 (1977). 9. It also should be noted that the requirement that the good faith issue be presented to t......
  • Boehner v. McDermott, No. 98-7156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 24, 1999
    ...lawfully obtained trade secrets or with laws protecting proprietary interests in performances. See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 577-79 & n.13 (1977). Congress may provide remedies for the unauthorized publication of copyrighted material even if the publisher broke no......
  • City of Mesquite v. Aladdin Castle, Inc, No. 80-1577
    • United States
    • United States Supreme Court
    • February 23, 1982
    ...contention is correct, we may review the Court of Appeals' interpretation of federal law. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568, 97 S.Ct. 2849, 2853, 53 L.Ed.2d 965; Mental Hygiene Dept. v. Kirchner, 380 U.S. 194, 198, 85 S.Ct. 871, 874, 13 L.Ed.2d 753; Missouri......
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2 firm's commentaries
10 books & journal articles
  • Thorny Copyright Issues-Development on the Horizon?
    • United States
    • Landslide Nbr. 13-1, September 2020
    • September 9, 2020
    ...for the lingering contradictions these cases have caused for right of publicity law. n Endnotes 1. 564 U.S. 786 (2011). 2. Id. at 789. 3. 433 U.S. 562 (1977). 4. White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1515 (9th Cir. 1993). 5. 498 F.2d 821, 827 (9th Cir. 1974). 6. 813 F.3d 891 (9t......
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    • Landslide Nbr. 10-5, May 2018
    • May 1, 2018
    ...right of publicity existed “in addition to and independent of [the] right of privacy”). 16. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). 17. Id. at 576; Vincent M. de Grandpré, Understanding the Market for Celebrity: An Economic Analysis of the Right of Publicity , 12 F......
  • Combating Internet Trolls: The Right of Publicity and Section 230
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    • September 9, 2020
    ...Andreacola, History: California Civil Code § 3344.1 , 12 J. Contemp. Legal Issues 592 (2001). 4. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 564–65 (1977). 5. See 1 McCarthy & Schechter, supra note 1, § 1:4. 6. As of 2020, the following states recognizing the right of publicity: Al......
  • An Interview with Kent L. Richland
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    • Landslide Nbr. 10-5, May 2018
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    ...right of publicity existed “in addition to and independent of [the] right of privacy”). 16. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). 17. Id. at 576; Vincent M. de Grandpré, Understanding the Market for Celebrity: An Economic Analysis of the Right of Publicity , 12 F......
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