The opinion
Celebrezze, J.,
concurring. I concur in the decision to remand this cause for trial for a determination of whether appellant infringed upon appellee’s right of publicity so as to become liable therefor, and so that damages, if any, may be assessed. I write, separately because the opinion of the majority does not directly address what it concedes to be the sole issue for this court to decide on remand, viz., whether, as a matter of Ohio constitutional *289 law, a television station is immunized from damages for an alleged infringement of the right of publicity which a performer has in his particular commercial activity. In view of the incontestable fact that the United States Supreme Court lacked jurisdiction to interpret and apply the free speech provision of the Ohio Constitution, I believe it is necessary for this court to do so. Indeed, this court will be abdicating its role as the ultimate arbiter of Ohio law if it remands this cause without having performed an analysis of the state constitutional law which must be applied to the facts as they develop at trial.
The five member majority of the United States Supreme Court held that the First and Fourteenth Amendments to the United States Constitution do not immunize the media when they broadcast a performer’s entire act without his consent. A majority of this court seems to conclude that the scope of the guarantees contained in Section 11, Article I of the Ohio Constitution is not “significantly different” than the scope of similar guarantees within the First Amendment to the United States Constitution. Implicit within this conclusion is the holding that, under Ohio constitutional law, the media is privileged to broadcast a performer’s act, without his consent, so long as the “entire act” is not appropriated. If this be the true intention of the majority I must disagree, and offer instead the following observations.
Unlike the First Amendment to the United States Constitution, which is, on its face, an absolute guarantee of free speech and press, Section 11, Article I of the Ohio Constitution proclaims that “[e]very citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right.” (Emphasis added.) In my opinion the latter phrase expresses a caveat, and allows for an interpretation of Section 11, Article I of the Ohio Constitution which is more narrow than the high court’s interpretation of the First Amendment, made applicable to the states through the Fourteenth Amendment.
*290 Furthermore, in the course of defining a standard by which to ascertain possible liability under Ohio law I would prefer that the “performer’s entire act” formula, utilized by a majority of the United States Supreme Court in their review of this cause, not be employed by Ohio courts. Such a formula fails to provide a sufficiently clear standard for resolution of this case ahd future similar cases and, in addition, ■ is susceptible to easy circumvention, as where all but a second or two of a performer’s act is appropriated by another. Therefore I suggest, as a substitute standard, that in that trial of this rather novel cause of action the court determine whether any salient, essential and nuclear portions of a performer’s act have been appropriated. Under this standard a more equitable balance can be reached between two competing concerns, since the media will be less likely to threaten the economic value of any performance it chooses to report.
It must be acknowledged that one function of the media is to freely inform the public about newsworthy entertainment events. The other concurring opinion in this cause professes to abhor the prospect of press self-censorship but urges, nevertheless, that the media should respond in damages if it televises, broadcasts or otherwise appropriates too much of an entertainer’s act. Certainly this quantitative standard imposes an added responsibility upon the news media, as does the qualitative standard proposed herein. It would seem that in order to reconcile . the media’s right to inform the public about newsworthy entertainment with the entertainer’s right to enjoy the fruits of his own industry, some degree of restriction on freedom of the press is unavoidable. The only real 'distinction between the two proposed tests is that I would impose liability where the media appropriates these portions of an act which an audience would otherwise have paid to see, whereas my concurring brother has formulated a standard' under which the media could- avoid liability simply by; excluding any portion of the appropriated act which it deems to be of lesser public interest.
*291 It is my position that the entertainer has a legitimate, correlative right which is entitled to protection, that being the right to enjoy the fruits of his own industry, free from unjustified interference or appropriation. Therefore, while a privilege should obtain in favor of the media when it reports newsworthy events, the privilege should not be considered a license to broadcast, or televise salient, essential and nuclear portions of an entertainer’s act itself. That type of reportage interferes with the entertainer’s control over the commercial display and exploitation of his personality, and may well amount to an infringement upon the entertainer’s right of publicity.
Locher, J., concurs in the foregoing concurring opinion.