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Privacy Rights in the Digital Age

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)

by Harold W. Fuson Jr.

A five-to-four decision, with a majority opinion by Justice Byron White, in which the U.S. Supreme Court reversed the Ohio Supreme Court and ruled that the First Amendment did not bar a claim for appropriation of a “right of publicity” by a performer whose “entire act” was broadcast by a television station without the performer's consent.

Justice Lewis F. Powell, in a dissent joined by Justices William J. Brennan, Jr. and Thurgood Marshall, argued that the First Amendment did bar the claim. Justice John Paul Stevens also dissented but on the grounds that the Ohio decision was based on state law, not on the First Amendment. News media activists decried the decision as opening the door to liability for factual coverage of public events.

In many respects, Zacchini was much ado about nothing, turning as it did on the unique nature of the plaintiff's act: fifteen seconds beginning with the bang of a carnival cannon and ending with a plop into a net. No published court decision before or since has presented a similar set of facts. Also, never again has the Supreme Court reviewed a case arising out of the category of invasion of privacy torts labeled “appropriation” by the Restatement of Torts 2nd and William Prosser's influential Handbook of the Law of Torts.

The case, however, is a study in the complexities of resolving invasion of privacy and other tort cases, and it served as a warning that some members of the Court felt that the press was pushing too hard for First Amendment protection in contexts the Court was not prepared to sustain.

Zacchini arose when a freelance reporter for a Cleveland television station saw Hugo Zacchini's human cannonball act at the Geauga County Fair. The Zacchini family had been in the cannonball business since the 1920s, when Edmondo Zacchini successfully constructed a pneumatic cannon, and his son Hugo and other family members, some also named Hugo, took the show on the road.

Zacchini noticed the reporter carrying a small camera and asked him not to film the performance. The reporter complied, but on instructions from his producer went back the next night and filmed the act. A fifteen-second clip capturing the act from the firing of the cannon to the landing appeared on the evening newscast with a voiceover urging viewers to see it in person.

Zacchini sued for damages of $25,000 for wrongful appropriation of the property rights in his act. Three years later, after numerous rulings from three Ohio courts and the Supreme Court, and without ever going before a jury, Zacchini accepted a settlement of $13,000, or about half his original demand.

Prior to Zacchini, the law of Ohio—its constitution, statutes, and court decisions—had little to say about the category of privacy invasion that Prosser had labeled appropriation and that included claims for taking an individual's “right to publicity.” In 1956, the Ohio Supreme Court, in a case arising out of intrusive and harassing debt-collection practices, none of which could be construed as appropriation, had decided on the basis of decisions of other states that Ohio recognized a right of privacy, which the court in passing said included appropriation.

The complaint in Zacchini characterized the claim as one for appropriation, and the trial judge, while agreeing that Ohio law recognized such a claim, ruled that the First Amendment as applied in Time, Inc. v. Hill, 385 U.S. 374 (1967), foreclosed enforcing such a claim against the news media. The claim in Time, Inc., was brought under the theory of “false light” invasion of privacy, not appropriation, and unlike the film in Zacchini, the magazine article in Time, Inc. arguably contained falsehoods. The Ohio court of appeals reversed the dismissal on the grounds that the claim was based on other Ohio theories that were not barred by the First Amendment, specifically, the common law of copyright and the ancient tort of conversion. The Ohio Supreme Court reversed the court of appeals, adopting the trial judge's view that the claim was for appropriation and that it was barred by the free speech rights of the news media. The Ohio Supreme Court, labeling the claim as one for appropriation of Zacchini's “right of publicity,” reasoned that “the ‘privacy’ which the performer seeks is personal control over commercial display and exploitation of his personality and the exercise of his talents.”

Justice White's opinion accepted the Ohio Supreme Court's decision that such a claim existed under Ohio law, but he held that the First Amendment did not bar such a claim. Much of Justice White's opinion, however, is devoted to the possibility that the Ohio Supreme Court relied on an independent Ohio doctrine, not on the First Amendment, in concluding that the claim could not be brought against a news organization. Such a doctrine, if it existed, could be binding in Ohio even if the First Amendment did not require it. The case was sent back to the Ohio Supreme Court to allow it to clarify whether its ruling had been based on the state's own law or on the First Amendment. The Ohio Supreme Court held that Zacchini's claim was not barred by any Ohio rule and that his case could proceed to trial. Instead, the parties chose to settle the claim.

Had there been a trial, the basic premise on which the appeals court's rulings had been based—that the station had aired Zacchini's “entire act”—might have collapsed. The act began with a promotional buildup that started well before the cannon fired and continued until Zacchini climbed out of the net and took the last of many bows. As Justice White acknowledged in a footnote, a jury might well have found the news report increased, not diminished, the value of Zacchini's act.

Despite Zacchini's relative obscurity in the First Amendment canon, the very uniqueness of the fact pattern continues today to lure litigants and scholars to examine the case for assistance in shaping the legal playing field affecting celebrityhood in a world where name and face recognition often produces large fortunes. For example, Zacchini has been cited in the context of athletes whose “acts” allegedly have been appropriated in videogames and in disputes about the rights of news organizations to live-stream athletic events.

Further Reading

1 

Baird, Douglas G. “Note: Human Cannonballs and the First Amendment: Zacchini v. Scripps-Howard Broadcasting Co.” Stanford Law Review 30, no. 6 (July 1978): 1185–1209. http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2019&context=journal_articles.

2 

Samuelson, Pamela. “Reviving Zacchini: Analyzing First Amendment Defenses in Right of Publicity and Copyright Cases.” Tulane Law Review 57, (1982): 836–929. http://scholarship.law.berkeley.edu/facpubs/1231

3 

Smolla, Rodney A. “Court Uses Human Cannonball to Shoot Hole in Gannett's First Amendment Claim.” The Media Institute, January 30, 2012. http://www.mediainstitute.org/IPI/2012/013012.php.

4 

Volokh, Eugene. “Freedom of Speech and the Right of Publicity.” Houston Law Review 40, no. 4 (2003): 903–930. http://www2.law.ucla.edu/volokh/publicity.pdf

See also: First Amendment to the U.S. Constitution; Invasion of Privacy; Privacy Laws, State; Privacy torts; Prosser, William Lloyd; Publicity, right of; Publicity, right of; Publicity, right of

Citation Types

Type
Format
MLA 9th
Fuson, Harold W. "Zacchini V. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0233.
APA 7th
Fuson, H. W. (2016). Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Fuson, Harold W. "Zacchini V. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed September 17, 2025. online.salempress.com.