Citation. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S. Ct. 2849, 53 L. Ed. 2d 965, 205 U.S.P.Q. (BNA) 741, 2 Media L. Rep. 2089, 40 Rad. Reg. 2d (P & F) 1485, 5 Ohio Op. 3d 215 (U.S. June 28, 1977)
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Brief Fact Summary.
Defendant aired Plaintiff’s entire fifteen-second stunt on the news. Plaintiff sued Defendant for appropriation.
Synopsis of Rule of Law.
False light is clearly a tort that protects reputation with the same overtones of mental distress as in defamation. In contrast, the right of publicity protects a proprietary interest of an individual in his act in part to encourage such entertainment.
Facts.
Zacchini (Plaintiff) performed the stunt of a human cannonball where he was shot from a cannon into a net 200 feet away. Plaintiff performed this stunt at the county fair. Scripps-Howard Broadcasting (Defendant) filmed and aired Plaintiff’s fifteen-second stunt on the 11 o’clock news with favorable commentary. Plaintiff brought an action for appropriation, alleging that the act was invented by his father and performed only by his family, and Defendant showed and commercialized the film of his stunt without his consent. Defendant moved for summary judgment, which was granted. Plaintiff appealed. The Ohio Court of Appeals reversed, but the Ohio Supreme Court reversed its decision. The Supreme Court granted certiorari.
Issue.
Do the First and Fourteenth Amendments privilege Defendant to broadcast Plaintiff’s entire stunt without compensation?
Held.
No. Judgment reversed.
* The broadcast of Plaintiff’s entire act on television poses a substantial threat to the economic value of that performance. The act is a product of Plaintiff’s own talents and energy, the end result of time, effort, and expense. Much of this economic value lies in the exclusive control over publicity of the performance. If the public can watch it on television, they will be less willing to see it at the fair. The effect of broadcasting is the equivalent of preventing Plaintiff from charging an admission fee.
* The differences between the torts of false light and publicity are significant. False light is clearly a tort that protects reputation with the same overtones of mental distress as in defamation. In contrast, the right of publicity protects a proprietary interest of an individual in his act in part to encourage such entertainment. This 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 has little to do with protecting feelings or reputation. In false light cases, the only way to protect the interests involved is to attempt to minimize publication of the damaging matter. In right of publicity actions, the only question is who gets to do the publishing.
Dissent.
(J. Powell) 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. I would hold that the First Amendment protects the station from a “right of publicity” or “appropriation” suit, absent a strong showing by Plaintiff that the news broadcast was a subterfuge or cover for private or commercial exploitation.
Discussion.
In this case, the Court is not preventing Defendant from discussing Plaintiff’s stunt. That would have a chilling effect on the First and Fourteenth Amendments. Rather, the Court is preventing Defendant from airing the entire stunt, because it would give viewers less incentive to go down to the fair to see it for themselves. By airing Plaintiff’s entire stunt, Defendant attracted viewers that would have otherwise gone to see Plaintiff.
