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Law School Case Brief

Zacchini v. Scripps-Howard Broad. Co. - 433 U.S. 562, 97 S. Ct. 2849 (1977)


Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, the U.S. Const. amends. I and XIV do not immunize the media when they broadcast a performer's entire act without his consent. The United States Constitution no more prevents a state from requiring a respondent to compensate a petitioner for broadcasting his act on television than it would privilege the respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner, Copyrights Act, 17 U.S.C.S. § 101 et seq., or to film and broadcast a prize fight, or a baseball game, where the promoters or the participants had other plans for publicizing the event.


Petitioner Hugo Zacchini’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 Scripps-Howard Broadcasting Co. (Scripps-Howard) and shown on a television news program later the same day. Zacchini then brought a damages action in state court against Scripps-Howard, alleging an "unlawful appropriation" of his "professional property." The trial court's summary judgment for Scripps-Howard 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 Zacchini 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 Scripps-Howard 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. The United States Supreme Court granted ceriorari review.


Was the broadcasting of Zacchini’s entire performance by Scripps-Howard without his consent protected by constitutional free speech privilege?




Holding that the free speech privilege afforded Scripps-Howard under U.S. Const. amends. I and XIV did not extend to broadcasting Zacchini’s entire performance, the Court reversed the judgment, and remanded to the state court. The Court determined that the court below did not rest the judgment on independent and adequate state grounds, and decided therefore that it had jurisdiction. The Court held that Zacchini’s "right of publicity" was different from, and accorded more deference than "false light" cases. The Court noted that "false light" cases were akin to defamation, while Zacchini’s case was merely one of who obtained the benefit of Zacchini’s work. In that regard, the Court held that Zacchini’s interest was more like a patent or copyright, interests which were not subject to claims of constitutional privilege. The Court also emphasized that the broadcast of an entire act was categorically different from reporting on an event, in that it posed a substantial threat to the economic value of the performance, and to Zacchini’s livelihood.

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