In Zacchini v. Scripps-Howard Broad. Co., decided in 1977, the United States Supreme Court considered the First and Fourteenth Amendments' relationship to a state tort action based on a professional entertainer's "'right to the publicity value of his performance." (1) The case involved an entertainer whose act consisted of him being shot from a cannon and landing in a net. A newscaster filmed this act at a county fair, and later aired the video on the news. The entertainer filed suit as a result. At issue in the case was the existence of a newscaster's First Amendment privilege from infringement for telecasting the entertainer's entire act or performance. (2)
In resolving this question, Mr. Justice White, writing for the majority, concluded that "the First and Fourteenth Amendments do not require" the telecast of an entertainer's entire act or performance be immunized from a right of publicity damage claim. (3)
Unresolved by the Court's holding are the myriad right of publicity claims that do not involve an entertainer's entire act. (4) Part III of this article will examine those claims. In doing so, existing approaches of state and lower federal courts in deciding the First and Fourteenth Amendments' privilege issue will be analyzed. (5) This analysis of the existing case law will be followed in Part IV by comments, criticism, and conclusions concerning the approaches. (6)
Before analyzing the present case law or offering criticism, comments, and conclusions, Part II of this article will take a closer look at Zacchini. Although the Court's opinion did not resolve instances dealing with celebrity publicity right claims that involve less than an entertainer's entire act, the opinion suggests to lower courts how they may approach those cases.
II. ZACCHINI V. SCRIPPS-HOWARD
A. The Approach of the United States Supreme Court's Majority
As indicated in the introduction, the holding in Zacchini makes it clear that the First and Fourteenth Amendments do not protect a news report, which includes a professional entertainer's entire act, from a state law right of publicity damages claim. (7) Before reaching this conclusion, the Court analyzed the speech and press interests guaranteed by the First Amendment that could support such a privilege.
Important to the Court's majority was the question of whether the public's interest in news or entertainment would be unduly affected if the telecast of the entertainer's entire act was not privileged. (8) When considering this problem, the Court analogized a publicity right claim to a claim for compensation. (9) After doing so, it concluded that "[t]he 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...." (10) Illuminated within this passage is the Court's recognition that the state claim is akin to a copyright infringement claim. This kinship rests on an economic incentive that the state right makes available, as does a copyright. As Zacchini also indicated, the state right "provides an economic incentive for him [the performer] to make the investment required to produce a performance of interest to the public." (11) Underlying a copyright, which the Constitution authorizes Congress to grant, "'is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors....'" (12) Therefore, the Constitution does not privilege the telecast of an entertainer's act, because if it did the public welfare would suffer.
Not only would the public interest suffer if the Constitution privileged a newscast that included a performer's act, but also, the Zacchini majority reasoned, such a privilege would not be needed to protect the public's other interests. …