A news reporter filmed Zacchini’s 15-second cannonball act without Zacchini’s consent and broadcast the entire act on a routine news program.
The First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without compensation and without his consent.
Zacchini is an entertainer who regularly performs a 15-second cannonball act at a county fair in Ohio. Members of the public who attend the fair do not pay a separate charge to watch Zacchini’s act. A freelance reporter for Scripps-Howard attended Zacchini’s act. Zacchini asked the reporter not to film his performance. The reporter complied that day but came back the next day, filmed the 15-second act, and broadcast the act on that night’s news program.
Zacchini sued for the commercial exploitation of his act without his consent as an unlawful appropriation of Zacchini’s personal property.
Do the First and Fourteenth Amendments immunize the media when they broadcast a performer’s entire act without compensation and without his consent?
No, the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without compensation and without his consent.
The majority’s holding is vague and not appropriately sensitive to the First Amendment values at stake. Whenever a TV editor is ensure if the footage portrays an entire act, she may decline coverage or water down the coverage. This is hardly the sort of news reportage the First Amendment is meant to foster.
Instead, we should act what use the station made of the footage. When a film is used for a routine portion of a regular news program, the First Amendment should protect the news company from a right of publicity or appropriation suit absent a strong showing by the plaintiff that the news coverage was a cover for private or commercial exploitation.
Here, Zacchini is not complaining about the exposure to the public but rather the fact he did not get paid for it. But having made the matter public, Zacchini cannot complain of routine news reportage.
The Ohio Supreme Court erroneously relied on Time, Inc. v. Hill because that case involved a claim of invasion of privacy under a false light theory instead of a right of publicity theory.
The interest to be protected under a false light theory is an individual’s reputation with overtones of mental distress as found in defamation cases. There, the only way to protect the interests involved is to minimize publication of the damaging matter.
In contrast, the interest to be protected under a right of publicity theory is the proprietary interest of the individual in his act to encourage such entertainment. Here, the only question is who may publish the matter at hand because an entertainer would not object to widespread dissemination of his act if he is compensated for the publication.
The broadcast of Zacchini’s act threatens the economic value of his performance moving forward. If the public can see the act for free on TV, it will be less likely to pay to see the same act later. Thus, what has happened here is not an appropriation of Zacchini’s reputation to enhance the Scripps-Howard news program, but rather appropriation of the very activity by which Zacchini acquired his reputation in the first place.
Zacchini is not seeking to enjoin the broadcast of his performance—he just wants to be paid for the publication of it.