Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)
Zacchini v. Scripps-Howard Broadcasting Co.
No. 76-577
Argued April 25, 1977
Decided June 28, 1977
433 U.S. 562
CERTIORARI TO THE SUPREME COURT OF OHIO
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, 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 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.
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. POWELL, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 579. STEVENS, J., filed a dissenting opinion, post, p. 582.