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
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
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
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
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
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
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