Zacchini v. Scripps-Howard Broadcasting Co.

351 N.E.2d 454, 47 Ohio St. 2d 224, 193 U.S.P.Q. (BNA) 734, 2 Media L. Rep. (BNA) 1199, 1 Ohio Op. 3d 129, 1976 Ohio LEXIS 687

• Court: Ohio Supreme Court
• Decided: July 28, 1976
• Docket: No. 75-995
• Status: Published

Opinions

Steen, J.

The complaint in this case claimed that “the defendant showed and commercialized the film of * * * [plaintiff’s] act without his consent and such conduct by the defendant was unlawful appropriation of plaintiff’s professional property.” Appropriation is a well-recognized branch of the more general tort of interference with the right of privacy. In Housh v. Peth (1956), 165 Ohio St. 35, 133 N. E. 2d 340, this court affirmed the principle that each individual has a legally protected' right of privacy. In paragraph two of the syllabus of that case, the court held that:

“An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.”

Appropriation is also recognized as a distinct form of invasion of privacy by the proposed Restatement of Torts, and by a leading commentator. Restatement of Torts 2d (Tentative Draft, No. 21 [1975]), Section 652C; Prosser, Privacy, 48 Calif. L. Rev. 383, 401-07.

The majority of the Court of Appeals, however, found that the recognized forms of invasion of privacy, including appropriation, do not “provide a logically adequate embrace for the wrong the plaintiff claims has been done.” The court proceeded to find that a performer’s act is property entitled to protection under the common law and held that: “The total appropriation of a performer’s act by video-taping and re-showing without the performer’s permission is an invasion of a property right which will give rise to a cause of action for damages based either on conversion or the invasion of the performer’s common law copyright.” . .

It is the opinion of this court that plaintiff’s claim is one for invasion of the right of privacy by appropriation, and should be considered as such. The Court of Appeals raised other issues in this case, sna sponte, and has, in our view, improperly and unwarrantedly disregarded the principles underlying conversion and common law copyright. A few comments on those subjects are therefore in order.

Conversion is a wrongful exercise of . dominion over property in exclusion of the right of the owner, or withholding it from his possession under a claim inconsistent with his rights. Railroad Co. v. O’Donnell (1892), 49 Ohio St. 489, 497, 32 N. E. 476. Although the original rule at common law was that only tangible chattels could be converted, it is now generally held that intangible rights which are customarily merged in or identified with some document may also be converted. Examples include drafts,¹ bank passbooks,² and deeds.³ See Prosser, The Law of Torts (4th ed. 1971), at pages 81-82. See, generally, Annotation, 44 A. L. R. 2d 927. But conversion does not apply to any intangible right, and certainly it has never been held that one’s countenance or image is “converted” by being photographed. The difficulties with any such holding are apparent. “Taking” a photograph of someone does not in fact-take anything from that person. If the photograph, or film is only. a. conversion when shown to others, we may well ask to how many others it must be shown, and how often, before it becomes actionable. The distinguishing characteristic., of conversion is the forced judicial sale of the chattel or right of which the owner has been wrongfully deprived. In the case of such intangible quasi-proprietary .rights as are involved here, a forced sale would be largely absurd, because of the doubtfulness of determining what has been “taken.” Is it the right to perform the act, to view it, to present it on television, to license its filming, or some other right?.Judicial ingenuity could perhaps award damages ..and find a res said to be sold. But to extend the .ambit .of conversion to rights such as those claimed by .plaintiff, which are more, appropriately considered under wholly distinct legal principles, is confusing, unnecessary, and improper.

.Common law copyright is similar to statutory copyright, in that it recognizes the right of the author or creator of . an original literary or artistic work ...to legal protection of. his efforts. It is a right which arises out of. the very act of creation. If a work may be copyrighted under the statutes,..it will also be protected by common law. before it is published or statutorily copyrighted, and the two forms of copyright are closely related, since the common law copyright expires when the protection of statutory copyright is acquired. See 1 Nimmer on Copyright 38-42.1, Section 11.1.

Plaintiff’s performance of his act is plainly not a “writing” within any of the statutory classification of works capable of copyright registration. Sections 4, 5, Title 17, U. S. Code. These statutory requirements do not restrict the common law protection for unpublished works, but they do suggest some appropriate limits to the sorts of intellectual property and rights which are properly copyrightable. It has been suggested, for example, that non-tangible oral expression should be protected by the common law, even though these are outside the’ statute. Cf. Estate of Hemingway v. Random House (1968), 23 N. Y. 2d 341, 296 N. Y. S. 2d 711 with 1 Nimmer on Copyright, supra. The essential purpose of copyrights, to foster and protect literary and artistic expression, might well warrant expansion coverage to such communications. But this plaintiff’s performance is safely outside even those bounds of copyright. It is not a literary or artistic expression, nor is it a dramatic composition, nor is it original. To extend common law copyright to protect such spectacles as “human cannonballs,” and to employ doubtful logic to hold that public performances do not constitute a publicátion which would terminate the right, would be to grant a perpetual right against copying, presumably both by other performers or by photographers, which would be even greater than the protection accorded by patents of statutory copyrights. Common law copyright should not be so extended. In short, it has no application to this case.

We proceed, then, to the issues we find to be raised in this case: Did the videotaping and broadcasting over his objection of plaintiff’s entire act constitute that form of invasion of privacy referred to as appropriation of a plaintiff’s name and likeness and, if so, was the television station privileged tó do so?

The concept of a right of privacy was first proposed in a celebrated law review article by Samuel D. Warren and Louis D. Brandéis in 1890. The Right to Privacy, 4 Harv. L. Rev. 193. Although initially rejected by the New York courts, the right of privacy was soon accepted by many state courts and enacted by statute in other states, including New York. Many of the early cases concerning the right of privacy involved the commercial use of plaintiff’s name, picture and likeness for such business purposes as advertising a product, or adding luster to the name of a corporation, and many of these eases arose under statutes which granted a right, of privacy based upon appropriation of one’s name or face only to exploitation “for advertising purposes or for the purposes of trade.” 8 McKinney’s Consolidated Laws of New York, Civil Rights, Section 50. See, e. g., Cardy v. Maxwell (Sup. Ct. 1957), 9 Misc. 2d 329, 169 N. Y. S. 2d 547.

In a jurisdiction where the right of privacy is a matter of common law, the courts have not limited the right solely to commercial appropriation, and have, for example, granted an injunction to prevent a woman from wrongly claiming she was the plaintiff’s common law wife. (Burns v. Stevens [1926], 236 Mich. 443, 210 N. W. 482); cancelled a birth certificate wrongly naming the plaintiff as father (Vanderbilt v. Mitchell [1907], 72 N. J. Eq. 910, 67 A. 97); enjoined the unauthorized use of a prominent politician’s name by a political party (State, ex rel. LaFollette, v. Hinkle [1924], 131 Wash. 86, 229 P. 317); and found actionable the signing of plaintiff’s name to a telegram urging the governor to veto a bill (Hinish v. Meier & Frank Co. [1941], 166 Ore. 482, 113 P. 2d 438). The interest which the law protects is that of each individual to the exclusive use of his own■ identity, and that ..interest is entitled to protection from misuse whether the misuse is for commercial purposes or otherwise. The commercial use of a person’s identity is likely to be more offensive to its subject, and may serve in some cases to distinguish mere incidental use of a person’s name and likeness, which is not actionable, from appropriation of the benefits associated with the person’s identity, which is. But the fundamental wrong is the appropriation for one’s self of the benefits of another’s name, likeness, or identity, and thé wrong is the same whether or not'that benefit is pecuniary. The applicable principles are well set' out in Restatement of Torts 2d (Tentative Draft No. 13, 1967), Section 652C, and the comments thereto, at pages 108 et seq., portions of which are quoted below.⁴

The determinative question is, accordingly, not whether the defendant’s taking and use of the films of plaintiff’s act was commercial, but, rather, whether that taking and use constituted the appropriation of the defendant’s exclusive rights to his own likeness and identity.

It seems, of course, somewhat anomalous for the plaintiff, who regularly performs in public before large crowds, to claim a right of privacy. The very purpose of a performer is to lure people to come watch him, and certainly the plaintiff hoped not for privacy, but for crowds of thrilled spectators. But there is no real anomaly; the “privacy” which the performer seeks is personal control over commercial display and exploitation of his personality and the exercise of his talents. In other words, performers and other public figures wish to keep the benefits of their performances private, or at least to retain control over them, in much the same way that any individual would wish to keep control over his name and face. Judge Jerome N. Frank has aptly called this aspect of privacy “the right of publicity”:

“* * * We think that, in addition to and independent of that right of privacy (which in New York derives from statute), a man has a right in the publicity value of his photograph, i. e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made ‘in gross,’ i. e., without an accompanying transfer of a business or of anything else. Whether it be labelled a ‘property’' right is immaterial; for here, as often elsewhere, the tag ‘property’ simply symbolizes the fact that courts enforce'a claim which Has pecuniary worth.

“This right might be called a ‘right of publicity.’ For it is common knowledge that many prominent persons (especially actors and ball-players),’ far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.” Haelan Laboratories, Inc., v. Topps, Chewing Gum, Inc. (C. A. 2, 1953), 202 F. 2d 866, 868. See, also, Pittsburgh Athletic Co. v. KQV Broadcasting Co. (1938), 24 F. Supp. 490.

It is this right, a right of exclusive control over the publicity given to his performances, which the plaintiff seeks to protect. For a performer, this right is a valuable part of the benefit which may be attained by his talents and efforts, and we think that this right is entitled to legal protection, contrary to the holding of some earlier cases. See, e. g., Gautier v. Pro-Football (1952), 304 N. Y. 354, 107 N. E. 2d 485; O’Brien v. Pabst Sales Co. (C. A. 5, 1942), 124 F. 2d 167.

We may assume that a right of publicity inheres in a performer, at least to the extent that the performer has not abandoned the right by effectively dedicating it to the public in whole or in part, or has failed to give reasonable notice to the public, and we need not consider when the right is abandoned or lost under the facts of this case. We may reasonably assume that the plaintiff’s performance of his act in a county fair was not such an abandonment of his right of publicity that anyone might, over his stated objection and without license or privilege, film the performance and broadcast the film to millions of viewers in the area.

The decisive issue in this case, then, is whether the defendant TV station had a privilege to film and televise the plaintiff’s performance, on its nightly news program, and if so whether that privilege was abused.

In Time, Inc., v. Hill (1967), 385 U. S. 374, the action was for invasion of the right of privacy under the New York statute, essentially under the category of placing a person in a false light. In that case, the court held, at pages 387-88, “that the constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.” On its face, this holding might be taken to mean that any truthful report which constitutes an invasion of privacy is privileged. In fact, it is not likely that the court-meant to go so far. The principle of the case is that freedom of the press inevitably imposes certain limits upon an individual’s right of privacy. As the court stated further:

“* * * Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. ‘Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ Thornhill v. Alabama, 310 U. S. 88, 102. ‘No sugT gestión can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expressions.’ Bridges v. California, 314 U. S. 252, 269. We have no doubt that the subject of the Life article, the opening of a new play linked to an actual incident, is a matter of public interest. ‘The line between the informing and the entertaining is too elusive for the protection of * * * [freedom of the press].’ Winters v. New York, 333 U. S. 507, 510. Erroneous statement is no less inevitable in such a case than in the case of comment upon public affairs, and in both, if innocent or merely negligent, ‘ * * * it must be protected if the freedoms of expression are to have the “breathing space” that they “need * * * to survive” * * *’ New York Times Co. v. Sullivan, supra, at 271-272. As James Madison said, ‘Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.’ 4 Elliot’s Debates on the Federal Constitution 571 (1876 ed.). * *

The effect of this holding, and of that in New York Times Co. v. Sullivan (1964), 376 U. S. 254, is that the press has a privilege to report matters of legitimate public interest even though such reports might intrude on matters otherwise private. See Restatement of Torts 2d (Tentative Draft No. 13,1967)⁵ Section 652 F. In cases involving claims of false light, that privilege may be lost by publication of knowing falsehoods, or in reckless disregard of the truth. Just as the press was held to be privileged to report matters which would otherwise be private, if they are of public concern, so too, it must be held privileged when an individual seeks to publicly exploit his talents while keeping the benefits private. The samo privilege exists in cases where appropriation of a right of publicity i§ claimed, and the privilege may properly be said to be lost where the actual intent of the publication is not to give, publicity to matters of legitimate public concern.

No such-claim of abuse was made in this case, nor' floés it appear any could be made. The 15 second film clip of plaintiff’s public performance was broadcasts single timé on a regular nightly news program. Under the' standard articulated by the court in Time, Inc., v. Hill, supra, it is clear that a public performance in a county fair is a. matter of legitimate public interest, just as the opening' of a new play was held to be. Plaintiff argues by implication that the TV broadcast infringed upon his rights becaiise it showed his entire performance, and that such a taking of his whole act, albeit one which only lasts a few seconds, is equivalent to the broadcast of an entire play or the public-cation, and thus passes the limits of any rights of reporting or fair comment. From the performer’s point of view1, that position is, of course, understandable, for a film ór video tape of a performance comes very close to actually reproducing the performance itself. However, the primary value which one society places upon freedom of speech and of press requires that we reject that viewpoint. The press, if it is to be able to freely report matters of public interest, must be accorded broad latitude in its choice of how much it presents of each story or incident, and of the emphasis to be given to such presentation. No fixed standard which would bar the press from reporting or depicting either an entire occurrence or an entire discrete part of a public performance can be formulated which would not unduly restrict the “breathing room” in reporting which freedom of the press requires. The proper standard must necessarily be whether the matters reported were of public interest, and if so, the press will be liable for apprópriation of a performer’s right of publicity only if its actual intent was not to report the performance, but, rather, to appropriate the performance for some other private use, or if the actual intent was to injure the performer. It might also be the case that the press would be liable if it recklessly disregarded contract rights existing between the plaintiff and a third person to present the performance to the public, but that question is not presented here.

Here, the TV station was privileged to report the facts of Mr. Zaechini’s performance in a newscast, because the performance was a matter of legitimate public interest. No abuse appears which would defeat that privilege. The judgment of the Court of Appeal is reversed and the judgment of the Court of Common Pleas is reinstated.

Judgment reversed.

■ O’Neill, C. J., Herbert, Corrigan, W. Brown and P. Brown, JJ'., concur. Celebrezze, J., concurs in part and dissents in part.

1 Gibsonburg Banking Co. v. Wakeman Banking Co. (1900), 20 C. C. 591, 10 C. D. 754.

2 Stebbins v. North Adams Trust Co. (1922), 243 Mass. 69, 136 N. E. 880.

3 Hayes v. Massachusetts Mut. Life Ins. Co. (1888), 125 Ill. 626, 18 N. E. 322.

4 Section 652C “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of His privacy.

“Comment:

“a. The-interest protected by'the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as such use may be of benefit to him or to others. Although the protection of bis personal feelings against mental. distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle such a licensee to maintain an action to protect it. The right of such a third person has sometimes been called a ‘right of publicity.’

b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff’s name or likeness to advertise the defendant’s business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to such commercial appropriations. It applies also where the defendant makes use of the plaintiff’s name or likeness for his own purposes and benefit, even though such use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in New York, Oklahoma, Utah and Virginia have, however, limited' the liability to commercial uses of name or likeness.

“c. Appropriation. In order that there may be liability under the rule stated in this Section, the defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff’s name or likeness. It is not enough that the defendant has adopted for himself a name that is the same as that of the plaintiff, so long as he does not pass himself off as the plaintiff, or otherwise seek to obtain for himself the values or benefits of the plaintiff’s name or identity. Unless there is such an appropriation, the defendant is free to call himself by any name he likes, whether there be only one person or a thousand others of the same name. Until the value of the name has in some way been appropriated, there is no tort. Compare, as to the use of a personal name as an infringement to the rights connected with a trade name, the rule stated in Section 722.

“d. Incidental use of name or likeness. The value of the plaintiff’s name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes, other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name, or his appearance, is brought before the public, since neither is in any way a private matter, and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial or other values associated' with the name or the'likeness that the right of privacy is invaded.' The fact'that the defendant is engaged in the business of publication,' for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make such incidental publication a commercial use of the name or likeness. Thus a newspaper, although it is not a philanthropic institution, does not become liable 'under the rule stated in this Section to every persóií whose name or likeness it publishes.” • ■ ’ ••

5 tentative Draft No, 21, of the Restatement of Torts, modifies Dean Prosser’s formulation of the right of privacy somewhat by formulating -the issue to be whether the appropriation is an “unreasonable” invasion of privacy, rather than whether it is privileged. However, since the gravamen of the issue in this case is not whether the degree of intrusion is reasonable, but whether First Amendment principles require that the right of privacy give way to the public right to be informed of matters of public interest and concern, the concept -of privilege seems the more useful and appropriate one. This approach does not suggest, however, that a claimed appropriation might not be de minimis.