Facts of the Case

Hugo Zacchini performed a "human cannonball" act, in which he was shot from a cannon into a net 200 feet away. A free-lance reporter for Scripps-Howard Broadcasting Co. recorded the performance in its entirety without consent and it aired on the nightly news. Subsequently, Zacchini sued Scripps-Howard, alleging the unlawful appropriation of his professional property. Ultimately, the Ohio Supreme Court ruled in favor of Scripps-Howard. While recognizing that Zacchini had a cause of action for the infringement of his state-law right to publicity, the court found that Scripps-Howard was constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose.

Question

Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer's state-law right of publicity?

Conclusion

No. In a 5-4 opinion delivered by Justice Byron R. White, the Court held that Scripps-Howard's constitutionally privileged free speech did not extend to broadcasting Zacchini's entire performance without his permission. Noting that Zacchini's interest in the case was similar to a patent or copyright, in which he was seeking to obtain the benefit of his work, the Court emphasized that the broadcast of an entire act was categorically different from reporting on an event in so far as it posed a substantial threat to the economic value of the performance. "Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent," wrote Justice White. Justice Louis F. Powell, Jr., joined by Justices William J. Brennan, Jr., and Thurgood Marshall, dissented, arguing that the recording was genuinely treated as news and as such Scripps-Howard was constitutionally privileged. Justice John Paul Stevens also dissented.