Zacchini v. Scripps-Howard Broadcasting Co.

• Decision Date: 28 July 1976
• Docket Number: SCRIPPS-HOWARD,No. 75-995,75-995
• Citation: 351 N.E.2d 454,47 Ohio St.2d 224,1 O.O.3d 129
• Parties: , 1 O.O.3d 129, 193 U.S.P.Q. 734, 2 Media L. Rep. 1199 ZACCHINI, Appellee, v.BROADCASTING CO., Appellant.
• Court: Ohio Supreme Court

Page 224

47 Ohio St.2d 224

351 N.E.2d 454, 1 O.O.3d 129, 193 U.S.P.Q. 734,

2 Media L. Rep. 1199

ZACCHINI, Appellee, v. SCRIPPS-HOWARD BROADCASTING CO., Appellant.

No. 75-995.

Supreme Court of Ohio.

July 28, 1976.

Syllabus by the Court

1. One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy, and the use or benefit need not necessarily be commercial.

2. The performer of a 'human cannonball' act has a right to the publicity value of his performance, and the appropriation of that right over his objection without license or privilege is an invasion of his privacy.

3. 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 plaintiff, Hugo Zacchini, is a 'human cannonball.' He performs the feat of being shot from a cannon into a net some 200 feet away. The entire performance lasts about 15 seconds.

In August and September of 1972, the plaintiff was regularly performing his act at the Geauga County Fair in Burton, Ohio. Each performance was staged in an open grandstand area for the pleasure of anyone attending the fair, and no separate admission was charged.

On August 30, 1972, a freelance news reporter for defendant Scripps-Howard Broadcasting Company, the owners of television station WEWS in Cleveland, attended the fair. Mr. Zacchini noticed the reporter and asked him not to film the performance. Although the reporter did not film the performance that day, he returned on the following day by order of the producer of defendant's Eyewitness News Program and video-taped the entire 'human cannonball' act. WEWS broadcast a fifteen-second film clip of the act on its eleven o'clock news program on September 1, with commentary by a newscaster who described the act as a 'thriller' and 'you really need to see it in person * * * to appreciate it * * *.'

Plaintiff sued the defendant for invasion of privacy, contending that the defendant had appropriated the plaintiff's professional talents for its own use. The trial court granted the defendant's motion for summary judgment. The Court of Appeals reversed that judgment, the majority holding that the complaint stated a cause of action for both conversion and invasion of common law copyright. Judge Manos concurred in the judgment only, on the theory that the complaint stated a claim for appropriation of the common-law right of publicity.

The cause is before this court pursuant to an allowance of a motion to certify the record.

Spangenberg, Shibley, Traci & Lancione and John G. Lancione, Cleveland, for appellee.

Baker, Hostetler & Patterson, Ezra K. Bryan, Don H. Pace and Lawrence V. Lindberg, Cleveland, for appellant.

STERN, Justice.

The complaint in this case claimed that 'the defendant showed and commercialized the film of * * * (plaintiff's) act without his consent and such conduct by the defendant was unlawful appropriation of plaintiff's professional property.' Appropriation is a well-recognized branch of the more general tort of interference with the right of privacy. In Housh v. Peth (1956), 165 Ohio St. 35 133 N.E.2d 340, this court affirmed the principle that each individual has a legally protected right of privacy. In paragraph two of the syllabus of that case, the court held that:

'An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering shame or humiliation to a person of ordinary sensibilities.'

Appropriation is also recognized as a distinct form of invasion of privacy by the proposed Restatement of Torts, and by a leading commentator. Restatement of Torts 2d (Tentative Draft, No. 21 (1975)), Section 652C; Prosser, Privacy, 48 Calif.L.Rev. 383, 401-07.

The majority of the Court of Appeals, however, found that the recognized forms of invasion of privacy, including appropriation, do not 'provide a logically adequate embrace for the wrong the plaintiff claims has been done.' The court proceeded to find that a performer's act is property entitled to protection under the common law and held that: 'The total appropriation of a performer's act by video-taping and reshowing without the performer's permission is an invasion of a property right which will give rise to a cause of action for damages based either on conversion or the invasion of the performer's common law copyright.'

It is the opinion of this court that plaintiff's claim is one for invasion of the right of privacy by appropriation, and should be considered as such. The Court of Appeals raised other issues in this case, sua sponte, and has, in our view, improperly and unwarrantedly disregarded the principles underlying conversion and common law copyright. A few comments on those subjects are therefore in order.

Conversion is a wrongful exercise of dominion over property in exclusion of the right of the owner, or withholding it from his possession under a claim inconsistent with his rights. Railroad Co. v. O'Donnell (1892), 49 Ohio St. 489, 497, 32 N.E. 476. Although the original rule at common law was that only tangible chattels could be converted, it is now generally held that intangible rights which are customarily merged in or identified with some document may also be converted. Examples include drafts, ¹ bank passbooks, ² and deeds. ³ See Prosser, The Law of Torts (4th ed. 1971), at pages 81-82. See, generally, Annotation, 44 A.L.R.2d 927. But conversion does not apply to any intangible right, and certainly it has never been held that one's countenance or image is 'converted' by being photographed. The difficulties with any such holding are apparent. 'Taking' a photograph of someone does not in fact take anything from that person. If the photograph or film is only a conversion when shown to others, we may well ask to how many others it must be shown, and how often, before it becomes actionable. The distinguishing characteristic of conversion is the forced judicial sale of the chattel or right of which the owner has been wrongfully deprived. In the case of such intangible quasi-proprietary rights as are involved here, a forced sale would be largely absurd, because of the doubtfulness of determining what has been 'taken.' Is it the right to perform the act, to view it, to present it on television, to license its filming, or some other right? Judicial ingenuity could perhaps award damages and find a res said to be sold. But to extend the ambit of conversion to rights such as those claimed by plaintiff, which are more appropriately considered under wholly distinct legal principles, is confusing, unnecessary, and improper.

Common law copyright is similar to statutory copyright, in that it recognizes the right of the author or creator of an original literary or artistic work to legal protection of his efforts. It is a right which arises out of the very act of creation. If a work may be copyrighted under the statutes, it will also be protected by common law before it is published or statutorily copyrighted, and the two forms of copyright are closely related, since the common law copyright expires when the protection of statutory copyright is acquired. See 1 Nimmer on Copyright 38-42.1, Section 11.1.

Plaintiff's performance of his act is plainly not a 'writing' within any of the statutory classification of works capable of copyright registration. Sections 4, 5, Title 17, U.S Code. These statutory requirements do not restrict the common law protection for unpublished works, but they do suggest some appropriate limits to the sorts of intellectual property and rights which are properly copyrightable. It has been suggested, for example, that non-tangible oral expression should be protected by the common law, even though these are outside the statute. Cf. Estate of Hemingway v. Random House (1968), 23 N.Y.2d 341, 296 N.Y.S.2d 711, 244 N.E.2d 250 with 1 Nimmer on Copyright, supra. The essential purpose of copyrights to foster and protect literary and artistic expression, might well warrant expansion coverage to such communications. But this plaintiff's performance is safely outside even those bounds of copyright. It is not a literary or artistic expression, nor is it a dramatic composition, nor is it original. To extend common law copyright to protect such spectacles as 'human cannonballs,' and to employ doubtful logic to hold that public performances do not constitute a publication which would terminate the right, would be to grant a perpetual right against copying, presumably both by other performers or by photographers, which would be even greater than the protection accorded by patents or statutory copyrights. Common law copyright should not be so extended. In short, it has no application to this case.

We proceed, then, to the issues we find to be raised in this case: Did the videotaping and broadcasting over his objection of plaintiff's entire act constitute that form of invasion of privacy referred to as appropriation of a plaintiff's name and likeness and, if so, was the television station privileged to do so?

The concept of a right of privacy was first proposed in a celebrated law review aritcle by Samuel D. Warren and Louis D. Brandeis in 1890. The Right to Privacy, 4 Harv.L.Rev. 193. Although intially rejected by the New York courts, the right of privacy was soon accepted by many state courts anc enacted by statute in other states, including New York. Many of the early cases concerning the right of privacy involved the commercial...