Entertainment law: an analysis of judicial decision-making in cases where a celebrity's publicity right is in conflict with a user's First Amendment right.

• Author: Wanat, Daniel E.

1. INTRODUCTION

   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.

2. ZACCHINI V. SCRIPPS-HOWARD

   1. 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. (13) First, the Court indicated that in a right of publicity case, the question is not whether the public will receive the benefit of the performer's act; rather, it is whether the entertainer versus the newscaster has the right to perform the act for the public. (14) Secondly, the Zacchini majority made it clear that no claim was made that a newscast "reporting the newsworthy facts about petitioner's act" was actionable at state law. (15) Thus the newscast was free to include facts relevant to the act, as distinguished from the act itself. In effect, the newscast is privileged to report to the public that a performer's act may be viewed without implicating a publicity right claim.

      In summary, the Court in Zacchini refused to require a Constitutional privilege because: (1) the public's interest in providing an economic incentive to the performer is to be furthered; and (2) the absence of the privilege does not adversely affect the public's interest in access to facts. (16)

   2. The Zacchini Dissent

      As with the Court's majority opinion, the Zacchini dissent was concerned with the First Amendment values at stake in the case. The dissenters, however, were "not persuaded that the Court's opinion [was] appropriately sensitive" to those values. (17)

      To reach the level of sensitivity needed to properly account for the First Amendment considerations in the case, the dissenters chose a starting point different from the Court's majority. In this regard, the dissent focused initially on the television station's usage of the film footage showing the performer's act. (18) Doing so caused the dissent to hold: "When a film is used, as here, for a routine portion of a regular news program ... the First Amendment protects the station from a 'right of publicity' ... suit, absent a strong showing by the plaintiff that the news broadcast was a subterfuge or cover for private or commercial exploitation." (19)

      As to why the dissent chose to focus on the telecaster's "use" versus the entertainer's "act," the answer rested in part on the dissent's characterization of the broadcast. It was non-commercial, and simply a report of a newsworthy event. (20) In part, the dissent also reasoned that the public would lose the "kind of news reportage that the First Amendment [was] meant to foster." (21)

      The dissent in Zacchini is important to the analysis of the relationship of the First Amendment to the publicity right-state law claim for a reason similar to that found in the majority's opinion. In both, the Court's members recognized that any formula to be used when deciding the First Amendment issue should be based on a consideration of the public's benefits and losses resulting in the absence of the privilege.

      The dissenting opinion is also important for a second reason. In it, Justice Powell recognized that the newscast was a non-commercial report. By implication, the dissenting opinion suggests that the First Amendment may not support a privilege when the use of an entertainer's performance is commercial.

      Part III of this article will open with a discussion of the commercial versus non-commercial nature of the use. Should the latter alone give rise to a First Amendment defense to a state law publicity right claim?

3. MATTERS RELEVANT TO THE FIRST AMENDMENT DEFENSE OF A RIGHT OF PUBLICITY CLAIM

   1. The Commercial versus Non-Commercial Nature of the Use

      Since Zacchini, courts in several cases have noted that a commercial use of the otherwise protected aspects of a celebrity's publicity right may not be privileged under the First Amendment. (22) For example, in Hoffman v. Capital Cities/ABC, Inc., the United States Court of Appeals for the Ninth Circuit was asked to consider whether the defendant-magazine's use of the plaintiff-actor's photograph commercially exploited the likeness of the actor. (23)

      When examining this question, the court accepted the following proposition: The use of a celebrity's identity solely to "'propose a commercial transaction' ... is clearly commercial speech." (24) According to the court, "[s]uch uses do not implicate the First Amendment's protection of expressions of editorial opinion." (25)

      The Hoffman case turned on the court's application of this proposition to the facts and its conclusion that the magazine's use of the photograph of the actor was not a commercial one. (26) The Ninth Circuit's reasoning on the commercial use question is enlightening. In this regard, the magazine did not use the photograph of Hoffman as an "advertisement printed merely for the purpose of selling a particular product." (27) Rather, the photo appeared in the context of a lead article in the magazine where "[a]ny commercial aspects are 'inextricably entwined' with expressive elements, and so they cannot be separated out 'from the fully protected whole.'" (28)

      In rejecting Hoffman's argument that a commercial use was made of his photo, such use being actionable at state law, the court appears to have adopted a "merger" type principle in which the use is not deemed commercial, although it may help sell magazines. (29) As to why, under the facts, this principle applied, Hoffman offered the following reasons: (1) the magazine did not receive consideration from designers whose clothing also appeared in the photograph; (30) and (2) the article in which the photograph appeared did not solely advance a commercial message. (31)

      Several lessons can be learned from Hoffman concerning the concept of a commercial use of an entertainer's identity. Important to consider are the following: (1) whether the purpose of the use is definitely advertising to sell a product; and (2) whether the commercial quality of the use, if any, is inseparable from expressive content. Should the purpose consist of more than an advertising aspect and the separability test not be met, the First Amendment should immunize a user from liability for using a celebrity's identity. (32)

      Hoffman also shed light on the analysis of the question of whether the use of an entertainer's identity is commercial or...