Zacchini v. Scripps Howard Broadcasting Company, 433 U.S. 562 (1977)

This is the only U.S. Supreme Court right of publicity case. Unlike most such cases, unauthorized use of a person’s identity for commercial purposes was not involved (see White v. Samsung Electronics [1993]).

Zacchini performed a ‘‘human cannonball’’ act. The entire act lasted fifteen seconds. A film clip of the act, unauthorized by Zacchini, was shown on a television news program. Zacchini sued, claiming misappropriation of his act, in violation of Ohio’s right of publicity statute. The Ohio Supreme Court ruled that the First Amendment precluded recovery. The U.S. Supreme Court reversed that decision. It held that an unauthorized broadcasting of the performance ‘‘is similar to preventing petitioner from charging an admission fee’’ and that the First Amendment does not ‘‘immunize the media when they broadcast a performer’s entire act without his permission.’’

The Court considered the performance entertainment, not news. Zacchini’s act was a form of intellectual property, ‘‘owned’’ by him. To make a living charging people to see him shot out of a cannon, he could not allow people to see it without charge on television; a similar situation occurs when owners of professional football games impose a ‘‘blackout’’ on local television broadcasts when the stadium is not sold out. The Supreme Court thus held that there was no First Amendment right to effectively eviscerate Zacchini’s property interest in his act by filming and broadcasting it without his permission.

The Court also noted, however, that the media remained free to report ‘‘newsworthy facts about petitioner’s act’’ so its decision did not infringe on freedom of the press. It said Zacchini did not ‘‘seek to enjoin the broadcast of his performance; he simply wants to be paid for it.’’ The case stands for the proposition that the right of publicity is a property interest that may be protected by the law but not if enforcement will interfere with First Amendment rights (see Cardtoons, L.C. v. Major League Baseball Players Association [1996]).

GERALD J. THAIN

Cases and Statutes Cited

• Cardtoons, L.C. v. Major League Baseball Players Association, 95 F.3d (10th Cir. 1996)
• White v. Samsung Electronics, 989 F.2d 1512 (9th Cir. 1993)