Zacchini v. Scripps-Howard Broadcasting Co.

376 N.E.2d 582, 54 Ohio St. 2d 286, 3 Media L. Rep. (BNA) 2444, 8 Ohio Op. 3d 265, 1978 Ohio LEXIS 558

• Court: Ohio Supreme Court
• Decided: May 24, 1978
• Docket: No. 75-995
• Status: Published

Opinions

Per Curiam.

The legal dispute central to this cause arose when a television station owned by appellant, the Seripps-Howard Broadcasting Company, showed, as a part of its evening news program, a film clip of appellee, Hugo Zacchini, performing his human cannonball act at the Geauga County Fair. In Zacchini v. Scripps-Howard Broadcasting Co. (1976), 47 Ohio St. 2d 224, 351 N. E. 2d 454, this court reinstated the trial court’s entry of a summary judgment for Seripps-Howard.

On June 28, 1977, the Supreme Court of the United States reversed the judgment of this court in Zacchini v. Scripps-Howard Broadcasting Co., supra.

The cause is now before this court on remand from the United States Supreme Court for further proceedings not inconsistent with its opinion.

In holding that the First and Fourteenth Amendments to the United States-Constitution do not immunize appellant from damages for its alleged infringement of appellee’s right of publicity, a five-member majority of the United States Supreme Court commented as follows:

“* * * Wherever the line in particular situations is to he drawn between media reports that are protected ánd those that are not, we are qnite snre that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent. The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner, * * * 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. There are ample reasons for reaching this conclusion.

“The broadcast of a film of petitioner’s entire act poses a substantial threat to' the economic value of that performance. As the Ohio court recognized, this act is the product of petitioner’s own talents and energy, the end result of much time, effort and expense. Much of its economic value lies in the ‘right of exclusive control over the publicity given to his performance’; if the public can see the act for free on television, they will be less willing to pay to see it at the fair. [Footnote omitted.] The effect of a public broadcast of the performance is similar to preventing petitioner from, charging an admission fee. * * *

“* * *

“There is no doubt that entertainment, as well as news, enjoys First Amendment protection. It is also true that entertainment itself can be important news. Time, Inc., v. Hill, supra [385 U. S. 374 (1967)]. But it is important to note that neither the public nor respondent will be deprived of petitioner’s performance as long as his commercial stake in-his act is appropriately recognized. Petitioner does not seek to enjoin the broadcast of this performance; he simply wants to be paid for it.” 433 U. S. 562, 53 L. Ed. 2d 965, 975-76, 978. .

The solé issue for this court to decide on remand is whether, as a matter' of Ohio Constitutional law, a television station is immunized from damages for ’.an alleged infringement of the right of publicity which a performer has in his particular commercial activity.

Section 11 of Article I of the Ohio Constitution guarantees freedom of speech and of the press, and reads, in pertinent part, as follows:

“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * *”

A majority of this court discerns no compelling reason on the record before' us to render a constitutional declaration beyond that which the majority of the United States Supreme Court announced in reviewing this cause. Furthermore, we perceive no justification upon this record to conclude that the pertinent effects of the First and Fourteenth Amendments to the United States Constitution are significantly different from those of Section 11 of Article I of the Constitution of Ohio.

This cause is remanded for trial to determine whether appellant engaged in an actionable infringement of ap-pellee’s rights and so that damages, if any, may be assessed.

Cause remanded.

O ’Neill, C. J., HeRbeet, P. Brown and Sweeney, JJ., concur. Celebrezze, W. Brown and Locher, JJ., concur in the judgment.