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Lecture 2

PUBPOL 373 Lecture 1: November 10th Reading Notes

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Duke University
Public Policy Studies

November 10 Reading Notes Zachinni v. Scripps-Howard Broadcasting Company  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. His performance occupies some 15 seconds.  A freelance reprorter for Scripps-Howard Broadcasting CO., the operator of a television broadcasting station and respondent in this case, attended the fair. He carried 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  He is engaged in the entertainment business. The act he performs is one invented by his father and performed only by his family for the last fifty years. Respondent showed and commercialized the film of his act without his consent and such conduct was an unlawful appropriation of plaintiff’s professional property  The First Amendment does 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  A TV 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  If under this standard respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, he would have a very different case.  His complaint is that respondent filmed his entire act and displayed that film on television for the public to see and enjoy  Petitioner had not abandoned his rights by performing under the circumstances present at the Geauga County Fairgrounds  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 interest protected in permitting recovery for placing the plaintiff in a false light is clearly that of reputation with the same overtones of mental distress as in defamation. The State’s interest in permitting a right of publicity is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment. As we later note, the State’s interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation  In “false light” cases the only way to protect the interests involved is to attempt to minimize publication of the damaging matter, while in the right of publicity cases the only question is who gets to do the publishing. An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as he gets the commercial benefit of such publication.  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.  The effect of a public broadcast of the performance is similar to preventing petitioner from charging an admission fee  No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.  Ohio’s decision to protect petitioner’s right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in his act; the protection provides an economic incentive for him to make the investment required to produce a performance of interest to the public  These laws perhaps regard the reward to the owner as a secondary consideration but they were intended definitely to grant valuable enforceable rights in order to afford greater encouragement to the production of works to benefit to the public.  It is also true that entertainment itself can be important news. Neither the public nor respondent will be deprived of the benefit 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 his performance; he simply wants to be paid for it  The report was part of an ordinary daily news program, consuming a total of 15 seconds. It is a routine example of the press’ fulfilling the informing function so vital to our system  The decision could lead to a degree of media self-censorship. Hereafter, whenever a television news editor is unsure whether a certain film footage received from a camera crew might be held to portray an entire act he may decline coverage even of clearly newsworthy events or confine the broadcast to be watered-down verbal reporting, perhaps with an occasional still picture  Rather than begin with a quantitative analysis of the performer’s behavior to determine whether this is or is not his entire act, we should direct initial attention to the actions of the news media: what use did the station make of the film footage? When a film is used, as her, for a routine portion of a regular news program, I would hold that the First Amendment protects the station form a “right of publicity” or appropriation” suit, absent a strong showing by the plaintiff that the news broadcast was a subterfuge or cover for private exploitation.  Having made the matter public – having chosen, in essence, to make it newsworthy – he cannot, consistent with the First Amendment, complain of routine news reportage. Hart v. Electronic Arts, Inc.  Appellant’s claims stemmed from Appellee’s alleged use of his likeness and biographical information in its NCAA Football series of videogames  As a condition in participating in college-level sports, Hart was required to adhere to the National Collegiate Athletic Association’s (NCAA) amateurism rules which state that a collegiate athlete loses his or her amateur status if the athlete uses his or her athletics skill (directly or indirectly) for pay in any form in that sport or the athlete accepts any remuneration or permits the use of his or her name or picture to advertise, recommend or promote directly the sale of a commercial product or service of any kind  Hart’s participation in college football also ensured his inclusion in EA’s successful NCAA Football videogame franchise.  The NCAA Football franchise’s success owes its focus on realism and detail.  Over 100 virtual teams in the game are populated by digital avatars that resemble their real-life counterparts and share their vital and biographical information.  While users can change the digital avatar’s appearance and most of the vital statistics (height, weight, throwing distance, etc.), certain details remain immutable: the player’s home state, home town, team, and class year.  Tests for resolving conflicts between the right of publicity and the First Amendment include the commercial-interest-based Predominate Use Test, the trademark-based Rogers Test, and the copyright-based Transformative Use Test  The Rogers Test looks to the relationship between the celebrity image and the work as a whole.  While the right of publicity is often invoked in the context of commercial speech it could also apply in instances where the speech is merely expressive  When addressing expressive speech, the very importance of celebrities in society means that the right of publicity has the potential of censoring significant expression by suppressing alternative version of celebrity images that are iconoclastic, irreverent or otherwise attempt to redefine the celebrity’s meaning. Thus, while the right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals, the right, like copyright, nonetheless offers protection to a form of intellectual property that society deems to have social utility.  Works containing significant transformative elements are less likely to interfere with the economic interests implicated by the right of publicity. For example, works of parody or other distortions of the celebrity figure are not, from the celebrity fan’s viewpoint, good substitutes for conventional depictions of the celebrity and therefore do not generally threaten markets for celebrity memorabilia that the right of publicity is designed to protect.  The transformative elements or creative contributions in a work may include under the right circumstances – factual reporting, fictionalized portrayal, heavy-handed lampooning, and subtle social criticism.  The balance between the right of publicity and the First Amendment turns on whether the celebrity likeness is one of the raw materials from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether the product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness. And when we use the word “expression,” we mean expression of something other than the likeness of the celebrity.  Based on the combination of both the digital avatar’s appearance and the biographical and identifying information – the digital avatar does closely resemble the genuine article. Not only does the digital avatar match Appellant in terms of hair color, hair style and skin tone, but the avatar’s accessories mimic those worn by Appellant during his time as a Rutgers player. The information, as has already been noted, also accurately tracks Appellant’s vital and biographical details. And while the inexorable march of technological progress may make some of the graphics in earlier editions of NCAA Football look dated or overly-computerized, we do not believe that video game graphics must reach (let alone cross) the uncanny valley to support a right of publicity claim.  The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game  The ability for users to change the avatar accounted, in large part, for the District Court’s deciding that NCAA Football satisfied the Transformative Use Test.  The balancing inquiry looks to see whether the interests protected by the right of publicity are sufficient to surmount the already existing First Amendment protections  Appellee seeks to create a realistic depiction of college football for the users. Part of this realism involves generating realistic representations of the various colle
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