Scripps Howard Television and the Right of Publicity: Zacchini v. Scripps-Howard

Scripps Howard Television, a prominent name in broadcasting history, found itself at the center of a landmark Supreme Court case involving the right of publicity. The case, Zacchini v. Scripps-Howard Broadcasting Co. (1977), established a crucial precedent regarding the balance between First Amendment rights and an individual’s right to control the commercial use of their performance. This article delves into the details of the case and its lasting impact on broadcast journalism and entertainment law.

Hugo Zacchini, a human cannonball, performed a 15-second act at a county fair in Ohio. A Scripps Howard Television reporter, without Zacchini’s consent, filmed the entire performance and aired it on a news program that evening. Zacchini sued, claiming that the broadcast constituted an “unlawful appropriation” of his “professional property,” essentially arguing for his right of publicity.

The Ohio Supreme Court initially sided with Scripps Howard, citing First Amendment protections for news reporting and relying on a previous case, Time, Inc. v. Hill. However, the U.S. Supreme Court reversed this decision, ruling in favor of Zacchini.

The core of the Supreme Court’s ruling was that the First Amendment does not provide blanket protection for news organizations when they broadcast a performer’s entire act without consent. The Court argued that broadcasting Zacchini’s complete performance posed a significant threat to the economic value of his act.

This threat manifested in two primary ways. First, it diminished the public’s willingness to pay to see the act live if they could watch it for free on television. Second, it directly undermined Zacchini’s ability to earn a living from his unique performance. Essentially, Scripps Howard Television’s actions threatened to deprive Zacchini of the economic benefit derived from his skill and investment in developing the act.

The Court drew a parallel between broadcasting an entire performance without consent and broadcasting copyrighted material without permission. Just as copyright law protects creators’ intellectual property, the right of publicity safeguards performers’ economic interests in their unique acts.

The ruling emphasized that while news and entertainment both enjoy First Amendment protection, this protection does not extend to the unauthorized appropriation of a performer’s entire act for commercial gain. The Court acknowledged that entertainment itself can be newsworthy but asserted that Scripps Howard Television could have reported on Zacchini’s performance without broadcasting the entire act.

The Zacchini decision established a significant legal precedent, clarifying the limits of First Amendment protection in the context of broadcasting a performer’s entire act. It affirmed that the right of publicity is not absolute but must be balanced against the public interest in news dissemination. The case continues to be cited in legal discussions surrounding intellectual property, the right of publicity, and the boundaries of press freedom in the digital age.

In conclusion, the Zacchini v. Scripps-Howard Broadcasting Co. case serves as a critical reminder of the delicate balance between the freedom of the press and the right of individuals to control the commercial exploitation of their talents. The case highlights the limitations of First Amendment protection when the unauthorized broadcast of a performance threatens the performer’s livelihood and the economic value of their act. This landmark decision continues to shape the legal landscape for media organizations and performers alike, underscoring the importance of respecting intellectual property and the right of publicity in the realm of news and entertainment.