Zacchini v. Scripps-Howard Broadcasting Company

PETITIONER: Zacchini
RESPONDENT: Scripps-Howard Broadcasting Company
LOCATION: YMCA of Greater Des Moines

DOCKET NO.: 76-577
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Ohio Supreme Court

CITATION: 433 US 562 (1977)
ARGUED: Apr 25, 1977
DECIDED: Jun 28, 1977

ADVOCATES:
Ezra K. Bryan - Argued the cause for the respondent
John G. Lancione - Argued the cause for the petitioner

Facts of the case

Hugo Zacchini performed a "human cannonball" act, in which he was shot from a cannon into a net 200 feet away. A free-lance reporter for Scripps-Howard Broadcasting Co. recorded the performance in its entirety without consent and it aired on the nightly news. Subsequently, Zacchini sued Scripps-Howard, alleging the unlawful appropriation of his professional property. Ultimately, the Ohio Supreme Court ruled in favor of Scripps-Howard. While recognizing that Zacchini had a cause of action for the infringement of his state-law right to publicity, the court found that Scripps-Howard was 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.

Question

Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer's state-law right of publicity?

Media for Zacchini v. Scripps-Howard Broadcasting Company

Audio Transcription for Oral Argument - April 25, 1977 in Zacchini v. Scripps-Howard Broadcasting Company

Audio Transcription for Opinion Announcement - June 28, 1977 in Zacchini v. Scripps-Howard Broadcasting Company

Warren E. Burger:

The judgment and opinion in 76-577, Zacchini against Scripps-Howard Broadcasting will be announced by Mr. Justice White.

Byron R. White:

This case is here from a judgment of the Supreme Court of Ohio.

It arose when Hugo Zacchini, an entertainer, sued the Scripps-Howard Broadcasting Company.

The operator of a television station claiming that he has rights under the Ohio law privacy had been violated when the station had broadcast a film of his performance without his consent.

Zacchini, interestingly enough has called the "human cannonball".

His entire act consist of being shot from a cannon into a net some 200 feet away.

This dispute came about when Zacchini who had been hired to perform on a regular basis at a county fair in Ohio objected to his act being filmed by a television reporter.

The film was made anyway and it was shown on the stations evening broadcast.

Zacchini sued.

Under the Ohio privacy law, an entertainer has what is called the "right of publicity."

That is the exclusive right to publicized and commercially exploit his performances as well as his name and his likeness.

The Supreme Court agreed with Zacchini that he had such right and that has been violated, but held that he had no remedy because as it understood the First and Fourteenth Amendments as construed by the cases in this Court, the television station was constitutionally privileged to do what it did in this case.

We granted certiorari and we reversed.

None of our cases has reached this situation and we declined to hold that that a television station is constitutionally privileged to broadcast a performer's entire act without his consent, whether it's part of a news broadcast or otherwise.

Entertainment is important news and thus Scripps-Howard could undoubtedly have broadcast the essential facts of Zacchini's performance as part of its news broadcast.

But the First Amendment does not protect the appropriation of an entire act anymore than it would be used for copyright at work.

Ohio need not have extended a right of publicity to Zacchini and even if it did, it could as a matter of its own law constitution or statutory, privileged the press to do what it did here, privileged to television station to broadcast this film.

All we hold is the Fourteenth Amendment in which applies the First to the States does not required the State to do so.

The judgment is reversed.

Mr. Justice Powell joined by Justices Brennan and Marshall has filed a dissenting opinion and Mr. Justice Stevens also dissents.

Warren E. Burger:

Thank you, Mr. Justice White.