Zacchini v Scripps
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[edit] 1 Zacchini v Scripps-Howard Broadcasting Co.
Case Name: Zacchini v Scripps-Howard Broadcasting Co.
Key words: Performance broadcasting, economic value of publicity
Country: U.S.
Citation: 433 U.S. 562
Court: Supreme Court of the United States. Judges: Burger , Brennan , Stewart , White, Marshall, Blackmun, Powell, Rehnquist, Stevens.
Date: 28.06.1977
Case N°: 76-577
Importance: U.S. Supreme Court recognises the right of publicity.
Facts: The plaintiff was an entertainer who regularly performed a “human cannonball” act, shot from a cannon into a net some 200 feet away in a County fair in Ohio. A free-lance reporter for the defendant attended the fair and wanted to film the act, but the performer asked him not to do so. However, he came the following day, filmed it and showed it entirely at the 11 o’clock news programme, together with some favourable comments. The plaintiff sued for damages for televising the act.
[edit] 2 Decision and Reasoning
[edit] 2.1 Decisions of the previous courts:
Like the judgement in the Court of Appeal, the Supreme Court of Ohio recognised the plaintiff’s right to publicity value of his performance. However, both courts held in favour of the defendant because of the privilege for TV stations to report matters of legitimate public interest. They mainly relied on the reasoning in Time v Hill, adapting the privacy aspects for the publicity context. They thought that using the concept of privilege was more appropriate than merely having recourse to the First Amendment principles. But because the Ohio court rested its decision both on state and federal grounds, the Supreme Court of the United States had jurisdiction for this case.
[edit] 2.2 The majority decision
White J. delivered the opinion of the Court
[edit] 2.2.1 The specific features of this case
It must be borne in mind that the facts and claim in this case are very distinctive. White J recalled that the plaintiff was not contending that his appearance or the performance could not be shown to the public or reported by the press as newsworthy items. Here, he complained about the fact that the defendant filmed the entire act and broadcasted it for the public to see and enjoy, which for the plaintiff amounted to “an appropriation of his professional property”.
In that case, relying too much on recognized privacy aspects is not recommended because they usually deal with injunction or prevention from disclosing news to the public because it is putting the plaintiff in “a false light”. That does not happen here. However, Time v Hill was the main starting point for the Ohio supreme court to reach a conclusion. White J stated that the Court was at this time much “steeped in the literature of privacy law”.
The case in front of the present judges now forced them to distinguish between two different torts.
[edit] 2.2.2 Different interests protected
The State’s interest in providing a cause of action for each situation is different. First, permitting recovery for putting the plaintiff in a false light is the protection against defamation or damage to someone’s reputation. The only way to protect this interest is by minimizing the publication of the damaging matter. However, when recognising a right of publicity, the State protects “the proprietary interest of the individual in his act in part to encourage such entertainment”. Then, an analogy is possible with the incentive aspects of patents and copyright law. The idea is that of a reward for someone’s endeavours. The crucial question is not connected with his feelings or reputation any more, but is rather who would do the publishing. Then, the plaintiff did not seek to enjoin the broadcast but sought compensation for it.
The different interests protected lead to distinguish between privacy aspects and publicity aspects in each case.
[edit] 2.2.3 The economic value of publicity
By recalling that the plaintiff had no objection to the widespread publication of his act but he wanted to get the commercial benefit of it, White J emphasized the economic value of a right of publicity. This claim is therefore narrower and simply deals with the fact that the defendant showed the entire act, for which the plaintiff is usually paid. The broadcast of the entire act caused a “substantial threat to the economic value of that performance”. Such value arises so long as the plaintiff has the exclusive right to control the publicity given to his activities. When the public can see it for free on television, it will be less willing to pay to see it at the fair. Therefore, one can understand that “the rationale for protecting the right of publicity is the straight-forward one of preventing unjust enrichment by the theft of good will”. In this situation, and unlike cases which involve the use of a name or look-alike, the broadcast of the entire act will have direct consequences against the plaintiff’s ability to earn a living as an entertainer. It amounts there to “the appropriation of the very activity”.
[edit] 2.2.4 The First and Fourteenth Amendments
Time v Hill involved the reporting of events. But did not include an attempt to publish an entire act for which someone is usually paid. White J reminded that someone’s right of publicity does not in itself prevent others from reporting the newsworthy fact about an activity, because entertainment itself can e important news. However, the First and Fourteenth amendments “do not immunize the media when they broadcast a performer’s entire act without his consent”. None of the parties or the public must be deprived of the benefit of the performance. This balance is achieved when the plaintiff’s commercial stake in his act is appropriately recognized.
[edit] 2.3 The dissenting opinions
Powell J delivered a dissenting opinion, to which Brennan and Marshall JJ joined. Stevens J delivered his own dissenting opinion, doubting about the basis of the state’s court action.
[edit] 2.3.1 Points of disagreement
First, Powell J thought that the main point discussed by White J is “a performer’s entire act” and is afraid that such expression would not provide a clear standard.
Secondly, he disagreed with the opinion of the court on the values at stake in the First Amendment. The Amendment stops unauthorized commercial broadcasts of events or performances in which the broadcaster keeps the profits. The present case gave no suggestion that such use occurred, but simply reported the cannonball act as a newsworthy event, which is foreseeable activity for a television station. Judging this case otherwise would lead to “a degree of media self-censorship” which would be detrimental to the public.
[edit] 2.3.2 A new test is proposed
Instead of taking a quantitative approach, by asking if the broadcast is of the entire act, Powell J wants the attention to move to the actions of the news media, i.e. asking what use the station made of the film footage. When the use is simply for reporting newsworthy events, then the First Amendment protects the station. Such protection disappears when the use is in fact a subterfuge or cover for private or commercial exploitation.
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