Zacchini v. Scripps-Howard Broadcasting Co.

433 U.S. 562, 97 S. Ct. 2849, 53 L. Ed. 2d 965, 1977 U.S. LEXIS 145, 205 U.S.P.Q. (BNA) 741, 2 Media L. Rep. (BNA) 2089, 40 Rad. Reg. 2d (P & F) 1485, 5 Ohio Op. 3d 215
Supreme Court of the United States·Decided June 28, 1977·No. 76-577·Published·Cited by 423 cases

Opinions

Mr. Justice White

delivered the opinion of the Court.

Petitioner, Hugo Zacchini, is an entertainer. He performs a “human cannonball” act in which he is shot from a cannon into a net some 200 feet away. Each performance occupies some 15 seconds. In August and September 1972, petitioner was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio. He performed in a fenced area, surrounded by grandstands, at the fair grounds. Members of the public attending the fair were not charged a separate admission fee to observe his act.

On August 30, a freelance reporter for Scripps-Howard Broadcasting Co., the operator of a television broadcasting station and respondent in this case, attended the fair. He [564]*564carried a small movie camera. Petitioner noticed the reporter and asked him not to film the performance. The reporter did not do so on that day; but on the instructions of the producer of respondent’s daily newscast, he returned the following day and videotaped the entire act. This film clip, approximately 15 seconds in length, was shown on the 11 o’clock news program that night, together with favorable commentary.1

Petitioner then brought this action for damages, alleging that he is “engaged in the entertainment business,” that the act he performs is one “invented by his father and . . . performed only by his family for the last fifty years,” that respondent “showed and commercialized the film of his act without his consent,” and that such conduct was an “unlawful appropriation of plaintiff’s professional property.” App. 4-*5. Respondent answered and moved for summary judgment, which was granted by the trial court.

The Court of Appeals of Ohio reversed. The majority held that petitioner’s complaint stated a cause of action for conversion and for infringement of a common-law copyright, and one judge concurred in the judgment on the ground that the complaint stated a cause of action for appropriation of petitioner’s “right of publicity” in the film of his act. All three judges agreed that the First Amendment did not privilege the press to show the entire performance on a news program without compensating petitioner for any financial injury he could prove at trial.

[565]*565Like the concurring judge in the Court of Appeals, the Supreme Court of Ohio rested petitioner’s cause of action under state law on his “right to publicity value of his performance.” 47 Ohio St. 2d 224, 351 N. E. 2d 454, 455 (1976). The opinion syllabus, to which we are to look for the rule of law used to decide the case,2 declared first that one may not use for his own benefit the name or likeness of another, whether or not the use or benefit is a commercial one, and second that respondent would be liable for the appropriation, over petitioner’s objection and in the absence of license or privilege, of petitioner’s right to the publicity value of his performance. Ibid. The court nevertheless gave judgment for respondent because, in the words of the syllabus:

“A TY station has a privilege to report in its newscasts matters of legitimate public interest which would otherwise be protected by an individual’s right of publicity, unless the actual intent of the TV station was to appropriate the benefit of the publicity for some non-privileged private use, or unless the actual intent was to injure the individual.” Ibid.

We granted certiorari, 429 U. S. 1037 (1977), to consider an issue unresolved by this Court: whether the First and Fourteenth Amendments immunized respondent from damages for its alleged infringement of petitioner’s state-law “right of publicity.” Pet. for Cert. 2. Insofar as the Ohio Supreme Court held that the First and Fourteenth Amendments of the [566]*566United States Constitution required judgment for respondent, we reverse the judgment of that court.

I

If the judgment below rested on an independent and adequate state ground, the writ of certiorari should be dismissed as improvidently granted, Wilson v. Loew’s Inc., 355 U. S. 597 (1958), for “[o]ur only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.’ Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945). We are confident, however, that the judgment below did not rest on an adequate and independent state ground and that we have jurisdiction to decide the federal issue presented in this case.

There is no doubt that petitioner’s complaint was grounded in state law and that the right of publicity which petitioner was held to possess was a right arising under Ohio law. It is also clear that respondent’s claim of constitutional privilege was sustained. The source of this privilege was not identified in the syllabus. It is clear enough from the opinion of the Ohio Supreme Court, which we are permitted to consult for understanding of the syllabus, Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437, 441-443 (1952) ,3 that in adjudi-[567]*567eating the crucial question of whether respondent had a privilege to film and televise petitioner’s performance, the court placed principal reliance on Time, Inc. v. Hill, 385 U. S. 374 (1967), a case involving First Amendment limitations on state tort actions. It construed the principle of that case, along with that of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), to be that “the press has a privilege to report matters of legitimate public interest even though such reports might intrude on matters otherwise private,” and concluded, therefore, that the press is also “privileged when an individual seeks to publicly exploit his talents while keeping the benefits private.” 47 Ohio St. 2d, at 234, 351 N. E. 2d, at 461. The privilege thus exists in cases “where appropriation of a right of publicity is claimed.” The court’s opinion also referred to Draft 21 of the relevant portion of Restatement (Second) of Torts (1975), which was understood to make room for reasonable press appropriations by limiting the reach of the right of privacy rather than by creating a privileged invasion. The court preferred the notion of privilege over the Restatement’s formulation, however, reasoning that “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 [568]*568right 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.” 47 Ohio St. 2d, at 234 n. 5, 351 N. E. 2d, at 461 n. 5. (Emphasis added.)

Had the Ohio court rested its decision on both state and federal grounds, either of which would have been dispositive, we would have had no jurisdiction.

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Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S. Ct. 2849, 53 L. Ed. 2d 965, 1977 U.S. LEXIS 145, 205 U.S.P.Q. (BNA) 741, 2 Media L. Rep. (BNA) 2089, 40 Rad. Reg. 2d (P & F) 1485, 5 Ohio Op. 3d 215 (1977).

433 U.S. 562 (Zacchini v. Scripps-Howard Broadcasting Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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