Respondents Brief — Zacchini v. Scripps-Howard Broadcasting Co.

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Supreme Court of the United States

October Term, 1976

No. 76-577

HUGO ZACCHINI,

Petitioner,

vs.

SCRIPPS-HOWARD BROADCASTING COMPANY,

Respondent.

On Writ or CERTIORARI

To THE SUPREME CourRT or OHIO

SS enneeeated

— —S

BRIEF FOR RESPONDENT

Ezra K. Bryan

Don H. Pace

LAWRENCE V. LINDBERG

Baker, Hostetter & PATTERSON

1956 Union Commerce Building

Cleveland, Ohio 44115

(216) 621-0200

Counsel for Respondent

THE GATES LEGAL FUBLISHING CO . CLEVELAND. OMIO-—TEL. (216) 621-8647

a —

TABLE OF CONTENTS

Table of Authorities

Question Presented

Relevant Constitutional Provision Which Was Not

Reproduced By Petitioner

Counterstatement of the Case

Summary of Argument

Argument

I. Introduction

II. This Case Should Be Dismissed For Want of

a Federal Question

The Ohio Supreme Court decision rests

on adequate and independent state

grounds

In defining the scope of common law

rights the Ohio Supreme Court may

look for guidance to decisions of this

Court

Any decision by this Court on the merits

would constitute merely an advisory

opinion

III. The News Media Privilege Recognized By the

Ohio Supreme Court Is Neither Novel, Un-

reasonable Nor Inconsistent With Federal

Constitutional Principles

A. The privilege afforded the press by the

Ohio Supreme Court is consistent with

the news media privilege traditionally

recognized in Ohio and other jurisdic-

tions

B. The privilege applied by the Ohio court

is consistent with First Amendment

principles articulated by this Court

Ls |

C. The Ohio court did not totally immunize

the press from right of publicity claims 24

IV. Any Remand For Further Proceedings in

This Case Must Be to the Ohio Supreme

Court 26

Conclusion 28

TABLE OF AUTHORITIES

Cases

AAFCO Heating and Air Conditioning Company v.

Northwest Publications, Inc., 321 N.E.2d 580 (Ind.

Ct. oo — cert. denied, 424 U.S. 913 (1976)

14-15, 27

American Ry. Divine Co. v. pr 273 U.S. 269

(1927) 10

Beck v. Ohio, 379 U.S. 89 (1964) 12

Cassidy v. ~~ 12 Ohio St. 2d 17, 231 N.E.2d 64

SD, eacmenan ee aie 5, 12

Chapadeau v. Utica eine Inc., 38 N.Y.2d

196, 341 N.E.2d 569 (1975) 15

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) 21

Current Audio, Inc. v. RCA Corp., 71 Misc. 2d 831,

337 N.Y.S.2d 949 (S. Ct. 1972) 20

Dept. of Mental — v. Kirchner, 380 U.S. 194

(1965) _ . - _.. BES aes una } 11, 27

Ellis v. Dixon, 349 U.S. 458 (1955) 11

Fairport, Painesville & Eastern R.R. Co. v. Meredith,

292 U.S. 589 (1934) . eae 10, 11

Garrison v. Louisiana, 379 U.S. 64 (1964) 24

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)

Seer es ...--- § 7, 14, 15, 21, 23, 2

ITI

Herb v. Pitcairn, 324 U.S. 117 (1945) 5, 16

In re Royall, 125 U.S. 696 (1888) 26

Jankovich v. Indiana Toll Road Comm’n, 379 U.S.

487 (1965) 12

Jenkins v. Dell Publishing Co., 251 F.2d 447 (3d.

Cir.), cert. denied, 357 U.S. 921 (1958) 23

Johnson v. Scripps Publishing Co., 32 Ohio L. Abs.

423, 18 Ohio Op 372 (C.P. 1940) 4,19

Liberty Warehouse Co. v. Burley Tobacco Growers’

Co-Op. Marketing Ass’n, 276 U.S. 71 (1928) 11

Liles v. Gaster, 42 Ohio St. 631 (1885) 25

Man v. Warner Bros., Inc., 317 F. Supp. 50 (S.D.NLY.

1970) 17, 20

Martin v. F.L.Y. Theatre Co., 26 Ohio L. Abs. 67, 10

Ohio Op. 338 (C.P. 1938) 4,18

Minnesota v. National Tea Co., 309 U.S. 551 (1940) 27

Murdock v. Memphis, 87 U.S. 590 (1874) 15

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

13, 14, 18, 21

Paulsen v. Personality Posters, Inc., 59 Misc. 2d 444,

299 N.Y.S.2d 501 (S. Ct. 1968) 20

Peagler v. Phoenix Newspapers, Inc., 26 Ariz. App.

274, 547 P.2d 1074 (1976) 15

Perkins v. Benguet Consolidated ile Co., 342 US.

437 (1951) ._

Regents of Univ. System of Georgie v. Carroll, 338

U.S. 586 (1950) 11

Rosemont Enterprises, Inc. v. Random House, Inc., 58

Misc. 2d 1, 294 N.Y.S.2d 122 (S. Ct. 1968), aff'd,

32 App. Div. 2d 892, 301 N.Y.S.2d 948 (1969) 19, 20

Rosenblatt v. Baer, 383 U.S. 75 (1966) 22

Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) 14, 15

Southern Ry. Co. v. Kentucky, 284 U.S. 338 (1932)

Stone v. Essex County Newspapers, Inc., 330 N.E.2d

161 (Mass. 1975)

Time, Inc. v. Hill, 385 U.S. 374 (1967) 7, 13, 14, 21

Torski v. Mansfield Journal Co., 100 Ohio App. 538,

137 N.E.2d 679 (1956)

Walker v. Colorado Springs Sun, Inc., 538 P.2d 450

(Colo.) cert. denied, 423 U.S. 1025 (1975)

Young v. That Was The Week That Was, 312 F. Supp.

1337 (N.D. Ohio 1969)

Zacchini v. Scripps-Howard Broadcasting Company,

47 Ohio St. 2d 224, 351 N.E.2d 454 (1976)

4, 9, 13, 14, 18, 24, 25

Texts

36 C.J.S. Federal Courts $268 (1960)

14A F. Poore, CycLopepia or FEDERAL PROCEDURE,

$69.77 (3d ed. 1965)

Note, 62 Cotum. L. Rev. 822 (1962)

14 Onto Jur. 2d Courts §247 (1955) __.

34 Ouro Jur. 2d Libel and Slander §58 (1958)

Constitutions and Statutes

Ohio Constitution, Article I, Section 11

United States Constitution, First Amendment

2,4

1, 5, 6, 7, 8, 12, 13, 15, 16, 21, 22

Supreme Court of the United States

October Term, 1976

No. 76-577

HUGO ZACCHINI,

Petitioner,

vs.

SCRIPPS-HOWARD BROADCASTING COMPANY,

Respondent.

On Writ or CERTIORARI

To THE SupPREME Court or OHIO

BRIEF FOR RESPONDENT

QUESTION PRESENTED

Whether, in a case of first impression which recog-

nizes a new common law right of publicity, the Ohio

Supreme Court, without federal intervention, may recog-

nize a news media privilege to report on a matter of public

interest which affords the protection required by the First

Amendment as interpreted by the United States Supreme

Court.

RELEVANT CONSTITUTIONAL PROVISION WHICH

WAS NOT REPRODUCED BY PETITIONER

Constitution of Ohio — Article I, Section 11:

Every citizen may freely speak, write, and publish

his sentiments on all subjects, being responsible for the

abuse of the right; and no law shall be passed to restrain

or abridge the liberty of speech, or of the press. In all

criminal prosecutions for libel, the truth may be given in

evidence to the jury, and if it shall appear to the jury,

that the matter charged as libelous is true, and was pub-

lished with good motives, and for justifiable ends, the

party shall be acquitted.

COUNTERSTATEMENT OF THE CASE

Petitioner’s Statement of the Case summarizes both

the facts of the case and the proceedings to date. While

Petitioner’s summary is essentially accurate, certain un-

disputed facts relevant to the decision of the Ohio Supreme

Court are not fully stated. These facts are as follows:

In August and September of 1972, Petitioner Hugo

Zacchini regularly performed his “human cannonball”

act for members of the general public attending the Geauga

County Fair, in Burton, Ohio (App. pp. 9-10). His perform-

ance lasted about fifteen seconds, during which he was

projected out of a cannon-like object into a net some two

hundred feet away (App. p. 9). No separate admission

fee was charged to view his act and his performance was

staged in an open grandstand area for the benefit of all

persons in general attendance at the fair (App. p. 9). Re-

porters and news cameramen were admitted to the fair

without charge by the fair’s promoters so that the fair

would receive publicity from the news coverage (App.

p. 10). The promoters to whom Petitioner sold his act

made no effort to restrict news coverage of Respondent's

act; in fact, by admitting reporters and cameramen free

of charge, the promoters encouraged such coverage (App.

p. 10).

On September 1, 1972, a freelance news reporter for

Respondent attended the Geauga County Fair and filmed

Petitioner’s performance over his verbal objection (App.

p. 10). Petitioner’s act had generated substantial public

interest at the fair and, in keeping with Respondent’s com-

mitment to present a broad range of news and information

to the public, Respondent determined that activities at the

fair, including the public performance of Petitioner's act,

would be of interest to its viewers and would call the

public’s attention to the fair’s attractions (App. p. 10).

Respondent broadcast a fifteen second news film clip

of Petitioner's act once on its eleven o'clock Eyewitness

News program on September 1, 1972 (App. p. 11). While

the film clip was being shown newscaster David Patterson

described the act as follows:

This ... now ... is the story of a true spectator sport

... the sport of human cannonballing . . . in fact, the

great Zacciini is about the only human cannonball

around, these days . . . just happens that, where he

is, is the Great Geauga County Fair, in Burton .

and believe me, although it’s not a long act, it’s a

thriller . . . and you really need to see it in person

.. . to appreciate it... . (App. p. 12) (emphasis in

original script).

This single news use of a fifteen second film clip of

Petitioner’s performance is the sole basis for Petitioner’s

claim against Respondent.

SUMMARY OF ARGUMENT

The decision of the Ohio Supreme Court in this case

is one of state law. The Ohio Supreme Court held for

the first time that under the common law of Ohio a “per-

former of a ‘human cannonball’ act has a right in the

publicity value of his performance, and the appropriation

of that right over his objection without license or privilege

is an invasion of his privacy.” Zacchini v. Scripps-Howard

Broadcasting Company, 47 Ohio St. 2d 224, 351 N.E.2d

454 (1976) (syllabus 2) (emphasis added). In recogniz-

ing the “right of publicity”, the Ohio Supreme Court

simultaneously applied a concomitant news media priv-

ilege as a defense to that right. This privilege was stated

as follows:

A TV station has a privilege to report in its news-

cast 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. Id. at 224, 351

N.E.2d at 455 (syllabus 3).

This privilege is one of state law, not federal con-

stitutional law. It is an extension of the state constitutional

and common law privilege afforded the news media in

Ohio in right of privacy cases since as early as 1938. Oxr10

Constitution, art. I, §11; Martin v. F.1.Y. Theatre Co.,

26 Ohio L. Abs. 67, 10 Ohio Op. 338 (C.P. 1938) ; Johnson

v. Scrirps Publishing Co., 32 Ohio L. Abs. 423, 18 Ohio

Op. 372 (C.P. 1940). See also Young v. That Was The

Week That Was, 312 F. Supp. 1337 (N.D. Ohio 1969).

In articulating this privilege, the Ohio Supreme Court

looked to the rationale behind the decisions of this Court

for guidance. Nevertheless, the right of the performer and

the privilege of the news media as set forth in the syllabi

of the Court’ constitute the decision of Ohio's highest

court as to the extent of protection to be afforded both per-

formers and the news media under the laws of Ohio.

Since adequate and independent nonfederal grounds for

the Ohio court's ruling exist, a review of the decision by

this Court would be inappropriate. Herb v. Pitcairn, 324 .

US. 117 (1945).

This Court has previously recognized that state

courts are free to afford protection to the press provided

such protection meets minimum federal constitutional

standards. Gertz v. Robert Welch, Inc., 418 US. 323

(1974). Thus the Ohio Supreme Court is free to recog-

nize a new common law right and to adopt, as an integral

part of that right, privileges and defenses emanating from

state common law and state and federal free press guaran-

tees so long as the privileges and defenses meet minimum

federai standards.

A decision by this Court on the merits of the federal

constitutional question proffered by Petitioner would

constitute only an advisory opinion to the Ohio Supreme

Court. While Petitioner has asked this Court to intervene

and announce specific federal standards which must

apply to right of publicity claims ar’_ing under state law,

the articulation of such standards under the facts of this

case would be highly inappropriate. Only when a state

supreme court in creating common law (i) fails to meet

the minimum constitutional protections which must be

accorded the press under the First Amendment and (ii)

grants recovery against the media, should this Court, in

the exercise of federal question jurisdiction, intervene to

define and apply those minimum constitutional standards.

In this case, the privilege afforded the press by the

’ The syllabus of the Ohio Supreme Court is the a

nouncement of the court. Cassidy v. Glossip, 12 Ohio St. 17

231 N.E.2d 64 (1967); 14 Onto Jur. 2d Courts §247 (1955).

Ohio Supreme Court is consistent with the privilege tradi-

tionally applied in right of privacy cases arising in Ohio

and other jurisdictions. It is furthermore grounded upon

the same free press concerns which this Court has long

considered to be so fundamentally important to our free

society. If this Court, despite the absence of federal

question jurisdiction, elects to advise the Ohio Supreme

Court on the minimum privilege required under the fed-

eral Constitution, Respondent submits that under the First

Amendment the news media is privileged to make news

use of matters of public interest which, under state law,

might otherwise be protected by an individual’s right of

publicity.”

ARGUMENT

I. Introduction.

In this case the Ohio Supreme Court was free to

refuse to recognize any right of Petitioner or to completely

immunize the news media in right of publicity actions

without raising a federal question. Nevertheless, Petitioner

attempts to create the illusion that this case involves a

conflict between an Ohio common law right and the First

Amendment when no such conflict exists. Simply stated,

the Ohio Supreme Court recognized a “right of publicity”

in Petitioner, a public performer, as ancillary to Ohio’s

long established right of privacy. The court at the same

‘time recognized that in the State of Ohio there exists a

qualified privilege for Respondent, a member of the news

2 At some later date when this Court articulates the minimurn

federal standard to be applied in right of publicity cases, it should

find that the second basis upon which a performer may defeat the

media privilege in Ohio is unconstitutional. Since under thes

facts the Ohio court did not defeat the privilege afforded Re-

spondent, the case is not an appropriate one to consider the

constitutionaltiy of the “intent to injure” standard adopted by

the Ohio court.

media, to report the public presentation of a performer's

act so long as the report constitutes news use and is not

made with the intention to injure the performer.

Petitioner, being a “maker’’ and not a disseminator

of news, neither has nor is claiming to have any First

Amendment or other federal right that has been violated.

Petitioner's complaint is that the Ohio court in seeking

guidance from First Amendment decisions of this Court

adopted for Ohio a more liberal news media privilege than

is arguably required by the decisions of this Court. Peti-

tioner seeks to transmogrify the Ohio court's decision ap-

proving the rationale of certain federal opinions into a

ruling made under compulsion of those opinions. Such

tortured reasoning does not create a conflict between Ohio

common law and First Amendment rights. This absence

of conflict alone disposes of this appeal.

Petitioner places great emphasis on the libel case of

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), sug-

gesting that the narrowing of the public interest test in

lihe! cases involving private individuals calls into question

the Ohio court’s reliance on the rationale of Time, Inc. v.

Hill, 385 U.S. 374 (1967), in formulating a privilege appli-

cable to right of publicity cases arising under Ohio law

(Brief for Petitioner, p. 27). Petitioner conveniently ig-

nores the fact that Gertz itself holds that the states in de-

veloping their common law are free of federal restraint

provided they do not restrict the news media more than

permitted by the minimum standards of First Amendment

protection sanctioned by this Court. This too defeats Peti-

tioner’s finely spun argument.

Petitioner seeks to have this Court set not the min-

imum but rather absolute protections which the states in

developing their common law may afford the news media.

Petitioner would require this Court’s affirmative partici-

pation in the formulation of state common law rights. Two

facets of the relief he seeks emphasize this. First, Peti-

tioner urges that this Court should adopt absolute (not

minimum) First Amendment standards applicable to the

relationship of public performers and the media (Brief

for Petitioner, p. 33). Second, Petitioner prays that this

Court not only reverse the decision of the Ohio Supreme

Court, but also that the case be remanded directly to the

trial court. Jd. Petitioner, in one blinding flash, seeks to

make this Court a general appellate court for the states

in common law cases. Such is not the function of this

Court, and the proper disposition of the case is to dismiss

the writ of certiorari as improvidently granted.

Finally, the news media privilege granted by the

Ohio Court is neither novel, unusual nor inconsistent with

the First Amendment freedoms so essential to our free

society. It constitutes an extension to right of publicity

cases of the news media privilege traditionally applied in

Ohio right of privacy cases. It is further consistent with

the news media privilege applied by other state and fed-

eral courts in other right of publicity cases and with the

First Amendment decisions of this Court. Any less of a

news media privilege would violate the First Amendment.

While conceding that Respondent has the “privilege

and right to report newsworthy events of public interest,”

Petitioner argues that the scope of the privilege applied

by the Ohio court results in “virtual total immunity” for

the media in right of publicity cases (Brief for Petitioner,

pp. 9-10, 13). Such is not the case. Petitioner is pratected

against both non-news use of his public performance by the

media as well as the use of his performance in a news

context with the intent to injure him. In fact, the latter

basis for defeating the privilege adopted but not applied

under the facts of this case is more than that to which

Petitioner is constitutionally entitled.

Il. This Case Should Be Dismissed For Want of a Federal

Question.

A. The Ohio Supreme Court decision rests on ade-

quate and independent state grounds.

It is fundamental that the development of common

law is the concern of state, not federal, courts. Implicit

in the power of the state courts to recognize new common

law rights is the power to define the parameters of those

rights. In the instant case the power of the Ohio Supreme

Ccurt to recognize a cause of action for invasion of the

right of publicity carries with it the unabridged right to

aelineate the prerequisites to such a claim and the priv-

ileges which constitute defenses thereto.

This case was one of first impression under the laws

of Ohio. In considering Petitioner’s claim, the Ohio Su-

preme Court recognized the right of publicity as but one

facet of Ohio’s right of privacy and, like the right of pri-

vacy. not absolute. 47 Ohio St. 2d at 231-32, 351 N_E.2d

at 459-60. The court further recognized specific affirma-

tive defenses which, under Ohio law, may be asserted to

defeat the right of publicity. The court held that a per-

former may abandon the right by “effectively dedicating

it to the public” or by failing to give “reasonable notice

to the public.” 47 Ohio St. 2d at 232, 351 N.E.2d at 460.

The Ohio court further recognized that in cases involving

the news media the right of publicity must be subject to

the media’s “privilege to report in its newscasts matters

of legitimate public interest which would otherwise be

protected by an individual’s right of publicity .. .” 47

Ohio St. 2d at 224, 351 N.E.2d at 455 (syllabus 3).

In defining the affirmative defenses which apply to

this newly recognized right, the Ohio Supreme Court was

properly exercising its function as the sole arbiter of

state law. This Supreme Court has neither the responsibil-

ity for the development of Ohio law nor the power to

interfere with the limitations placed by the Ohio Supreme |

Court on common law causes of action unless some federal

right of Petitioner is infringed.

As a general rule, the highest court of a state

may administer the common law according to its own

understanding and interpretation, without liability

to a review in the United States Supreme Court, un-

less some right, title, immunity, or privilege, the

creation of the federal power, has been asserted and

denied. 36 C.J.S. Federal Courts $268 at 739 (1960).

This Court, in American Ry. Express Co. v. Ken-

tucky, 273 U.S. 269 (1927), acknowledged the role of

the state courts in matters of common law. In declining

to reverse a decision of the Court of Appeals of Kentucky,

this Court held:

As there was no controlling statute the state

court necessarily determined the rights and liabilities

of the parties under the general rules of jurisprudence

which it deemed part of the law of Kentucky and

applicable in the circumstances. It went no further.

No earlier opinion was overruled or qualified and no

rule was given any retroactive effect. Save in excep-

tional circumstances not now present we must accept

as controlling the d&écision of the state courts upon

questions of local law, both statutory and common.

Id. at 272 (emphasis added).

Similarly, in Fairport, Painesville & Eastern R.R.

Co. v. Meredith, 292 U.S. 589 (1934), this Court declined

to review the doctrine of last clear chance as applied by

the Ohio courts. Appellant argued that the holding with

respect to the doctrine was contrary to the great weight

of American authority. This Court ruled, however, that

it was precluded from considering appellant’s contention

as the case concerned a matter of Ohio common law and

presented no federal question for review.

The federal Safety Appliance Act . . . imposes

absolute duties upon interstate railway carriers and

thereby creates correlative rights in favor of such

injured persons as come within its purview; but the

right to enforce the liability which arises from the

breach of duty is derived from the principles of com-

mon law. The act does not affect the defense of con-

tributory negligence, and, since the case comes here

from a state court, the validity of that defense must

be determined in accordance with applicable state

law. Id. at 598.

Other decisions of this Court affirm the paramount

authority of the states in matters of common law. See, e.g.

Liberty Warehouse Co. v. Burley Tobacco Growers’ Co-

Op. Marketing Ass’n, 276 U.S. 71, 89 (1928) (“...a

State may freely alter, amend or abolish the common law

within its jurisdiction.” ); and Regents of Univ. System of

Georgia v. Carroll, 338 U.S. 586 (1950).

This Court has consistently neld that its initial re-

sponsibility in reviewing any case from a state court is

to ascertain “whether that court’s decision ‘might’ have

rested on a nonfederal ground, for if it did we must decline

to take jurisdiction.” Ellis v. Dixon, 349 U.S. 458, 459

(1955). If the Court is “unable to say with any degree

of certainty” that a judgment is based on a federal right,

it will decline to review the case, since the “Court is al-

w:s wary of assuming jurisdiction of a case from a state

court unless it is plain that a federal question is necessarily

presented, .. .” Dept. of Mental Hygiene v. Kirchner, 380

U.S. 194, 196-97 (1965). The party seeking review must

demonstrate to the Court that it does indeed have juris-

diction of the case. Id. Unless the opinion of the state

court indicates that the court “ ‘felt constrained to rule as

it did’ ” or that it was ruling “ ‘under compulsion of federal

law’ ”’, this Court will defer to adequate and independent

state grounds for the decision. Jankovich v. Indiana Toll

Road Comm’n, 379 U.S. 487, 492 (1965).

In the instant case the syllabus of the decision of the

Ohio Supreme Court is the official opinion of the court and

states the law of the case. Cassidy v. Glossip, 12 Ohio St.

2d 17, 231 N.E.2d 64 (1967). This Court has recognized

that the Ohio Supreme Court “speaks as a court only

through the syllabi of its cases”. Beck v. Ohio, 379 U.S.

89, 93 n.2 (1964). Matters outside the syllabus are not

to be regarded as decision since ‘“‘only the syllabus neces-

sarily carries the approval of that court.” Perkins v. Ben-

guet Consolidated Mining Co., 342 U.S. 437, 441 (1952).

Only when the accompanying opinion unequivocally states

that the Ohio court is prohibited by federal law from

reaching any conclusion other than that contained in the

syllabus will this Court exercise federal question jurisdic-

tion. Id. at 443.

Petitioner assumes that the privilege applied by the

Ohio court was not one of state law but of federal law,

and that the Ohio court felt compelled by federal law to

deny recovery to Petitioner (Brief for Petitioner, p. 10 n.

2). However, the syllabi in this case in no manner suggest

that the Ohio court felt it was prohibited from granting

recovery to Petitioner. The deliberate lack of reference in

the syllabi to the First Amendment indicates that the court

did not feel constrained by federal law but rather that it

looked to general free press principles for guidance in

formulating the state law privilege.

Nor does the accompanying opinion of Justice Stern

suggest that the court “felt constrained” by the First

Amendment to rule as it did or that it acted “under com-

pulsion of federal law” in prohibiting Petitioner from re-

covering. Rather, the opinion suggests that the Court is

recognizing a new common law right subject to specific

OF <<

conditions and privileges which afford proper protection

to the press.

Respondent submits that it is apparent from a con-

sideration of the foregoing authorities and the syllabi and

opinion of the Ohio court that the writ of certiorari in

this case was improvidently granted and that the decision

of the Ohio Supreme Court should be allowed to stand as

the Ohio court’s expression of the proper defenses to be

applied to common law right of publicity cases arising

under the laws of Ohio.

B. In defining the scope of common law rights the

Ohio Supreme Court may look for guidance to

decisions of this Court.

Petitioner states his primary objection to the Ohio

Supreme Court’s decision as follows:

Petitioner contends that the Ohio Supreme

Court’s reliance on Time, Inc. v. Hill, 385 U.S. 374

(1967) and New York Times Co. v. Sullivan, 376

U.S. 254 (1964), for guidance is erroneous. (Brief

for Petitioner p. 10) (emphasis added).

Respondent submits that the. contrary is true. A state

supreme court in formulating defenses to common law

causes of action is free to consider pronouncements of

this Court, particularly in the First Amendment area.

In this case the Ohio Supreme Court adopted the

basic rationale of New York Times Co. v. Sullivan, 376

U.S. 254 (1964), as applied in Time, Inc. v. Hill, supra,

that ‘freedom of the press inevitably imposes certain

limits upon an individual’s right of privacy.” 47 Ohio St.

2d at 233, 351 N.E.2d at 460. The Ohio court concluded

that the reasoning of this Court in Time, Inc. v. Hill was

sound and that a similar privilege should apply to right

of publicity cases arising under Ohio law:

Just as the press was held to be privileged to report

matters which would otherwise be private, if they are

of public concern, so too, it must be held privileged

when an individual seeks to publicly exploit his tal-

ents while keeping the benefits private. The same

privilege exists in cases where appropriation of a

right of publicity is claimed . .. . 47 Ohio St. 2d at

234, 351 N.E.2d at 461.

The Ohio Supreme Court’s reliance on Time, Inc. v.

Hill and New York Times Co. v. Sullivan for guidance in

formulating the rule of law for Ohio with respect to pri-

vacy claims parallels the use made by other state courts

of Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971),

in granting state news media defenses to libel claims

brought by private irdividuals. Guided by this Court’s

pronouncement in Gertz v. Robert Welch, Inc., 418 U.S.

323, 347 (1974), that “‘so long as they do not impose liabil-

ity without fault, the States may define for themselves

the appropriate standard of liability for a publisher or

broadcaster of a defamatory falsehood injurious to a pri-

vate individual’, several state courts have found the

rationale of the disaprroved Rosenbloom decision persua-

sive. They have accordingly adopted a Rosenbloom or mod-

ified Rosenbloom test to be applied in their states in defa-

mation cases involving private individuals. In Walker v.

Colorado Springs Sun, Inc., 538 P.2d 450 (Colo.), cert.

denied, 423 U.S.1025 (1975), the Colorado Supreme Court

concluded that the simple negligence test allowed by Gertz

would cause a chilling effect upon the news media and

“‘would create a strong impetus toward self-censorship

| by the news media|, which the First Amendment cannot

tolerate.’ Id. at 458 (quoting from Rosenbloom v. Metro-

media).

Similarly, the Indiana Court of Appeals, in AAFCO

Heating and Air Conditioning Company v. Northwest Pub-

lications, Inc., 321 N.E.2d 580 (Ind. Ct. App. 1974), cert.

denied, 424 U.S. 913 (1976), determined that the Rosen-

bloom standard is the appropriate standard to govern defa-

mation claims brought under the laws of Indiana. Other

similar cases include Stone v. Essex County Newspapers,

Inc., 330 N.E.2d 161 (Mass. 1975), where the Supreme

Judicial Court of Massachusetts ruled that punitive dam-

ages may not be awarded in a defamation action on any

state of proof, even though permissible under Gertz; Peag-

ler v. Phoenix Newspapers, Inc., 26 Ariz. App 274, 547

P.2d 1074 (1976); and Chapadeau v. Utica Observer-

Dispatch, Inc., 38 N.Y.2d 196, 341 N.E.2d 569 (1975).

It is the function of this Court in the First Amend-

ment area to insure that no state court denies the min-

imum constitutional protection required by the First

Amendment. So long as they meet minimum federal con-

stitutional standards, the state courts in right of publicity

cases have the freedom permitted them under Gertz to

delineate the protection to be afforded the press under

state law.

C. Any decision by this Court on the meriis would

constitute merely an advisory opinion.

Petitioner has asked this Court to intervene in a

state matter and formulate specific First Amendment

standards to govern the relationship between public per-

formers and the broadcast media (Brief for Petitioner,

p. 29). However, under the facts of this case an opinion

rendered by this Court on First Amendment issues would

be merely advisory. This Court has always held that it

will not issue advisory opinions, even in cases where it

believes that the lower court has wrongly decided a fed-

eral question, if an adequate nonfederal ground for the

lower court’s decision also exists. Murdock v. Memphis,

87 U.S. 590, 634-636 (1874). Since the decision of the

Ohio court in this case was founded on state law, the

resolution of the competing interests of performers and

the press under federal law is not properly an issue.

The words of Justice Jackson contained in Herb v.

Pitcairn, 324 U.S. 117, 125-126 (1945), are instructive:

This Court from the time of its foundation has

adhered to the principle that it will not review judg-

ments of state courts that rest on adequate and inde-

pendent state grounds. (citations omitted) * * * The

reason is so obvious that it has rarely been thought

to warrant statement. It is found in the partitioning

of power between the state and federal judicial sys-

tems and in the limitation of our own jurisdiction.

Our only power over state judgments is to correct

them to the extent that they incorrectly adjudge

federal rights. And our power is to correct wrong

judgments, not to revise opinions. We are not per-

mitted to render an advisory opinion, and if the same

judgment would be rendered by the state court after

we correct its views of federal laws, our review could

amount to nothing more than an advisory opinion.

(emphasis added).

This is a most inappropriate case in which to advise

the state courts on the minimum First Amendment

standard applicable to right of publicity cases. First, the

facts of this case have such narrow and singular applica-

tion that a decision on the merits would have little, if any,

general application. The news media has no interest in

reproducing lengthy segments of an individual’s perform-

ance, and in only the most unusual case (such as exists

here) will any substantial portion of a performance be

used in a news context. Petitioner attempts to intrigue

this Court by asserting that the interests of public per-

formers and personalities are being markedly limited by

the privilege applied by the Ohio court (Brief for Peti-

tioner, p. 13). This assertion could not be farther from

the truth. Virtually all right of publicity complaints

raised by performers relate to the commercial use of their

name or likeness. It is the commercial use which is the

bane of performers, not legitimate news use which the

vast majority of performers seek and benefit from.’

Second, performers such as the Petitioner have suf-

ficient means to prevent media coverage of their perform-

ances if they really do not want coverage. In performers’

contracts with promoters, the promoters can be required

to include explicit prohibitions against mechanical repro-

ductions on tickets and programs. If a performer sells his

performance to a promoter as Petitioner did in this case,

the performer can, at the contractual stage, determine the

conditions and limitations to be placed on audience repro-

duction of the performance.

Thirdly, Respondent’s use of the film clip of Peti-

tioner’s act was de minimis. In Man v. Warner Bros., Inc.,

317 F. Supp. 50 (S.D.N.Y. 1970), a Federal District Court

found that even commercial use of a forty-five second film

clip of plaintiff’s entire musical performance did not pro-

vide the basis for a claim under New York's right of pri-

vacy statute. The Court’s holding in Man, Id. at 53, is

directly in point here:

Finally, the incidental use of plaintiff's forty-five

second performance in defendants’ motion picture of

this public event is surely de minimis |sic!. Cf. Uni-

versity of Notre Dame du Lac v. Twentieth Century

Fox Film Corp., supra; Damron v. Doubleday, Doran

& Co., 133 Misc. 302. 231 N.Y.S. 444 (Sup. Ct., N.Y.

Co. 1928), aff'd 226 App. Div. 796. 234 N.Y.S. 773

(1st Dep’t 1929).

Aithough the Ohio Supreme Court did not have to rely

upon the de minimis theory in dismissing Petitioner's

In this case the very favorable publicity given Petitioner

by Respondent could only enhance his career and the market-

ability of his act. (See App. p. 12).

claim since the news media privilege precluded recovery

under the facts of this case, the court nevertheless sug-

gested that Petitioner’s claim was insubstantial. 47 Ohio

St. 2d at 234 n. 5, 351 N.E.2d at 461 n. 5.

It is difficult to imagine a less appropriate case for

this Court to advise state courts as to minimum federal

constitutional standards which must be afforded the press

in right of publicity claims arising under state common

law. For this additional reason, Respondent suggests that

the writ of certiorari to the Ohio Supreme Court should

be dismissed as improvidently granted.

Ill. The News Media Privilege Recognized By the Ohio

Supreme Court Is Neither Novel, Unreasonable Nor

Inconsistent With Federal Constitutional Principles.

A. The privilege afforded the press by the Ohio

Supreme Court is consistent with the news media

privilege traditionally recognized in Ohio and

other jurisdictions.

In Ohio the media’s privilege to report on matters

of general and public interest did not begin with New

York Times Co. v. Sullivan. Since 1938 state courts in

Ohio have applied a news media privilege to disseminate

matters of public interest as a defense to invasion of pri-

vacy claims. In Martin v. F.I.Y. Theatre Co., 26 Ohio L.

Abs. 67, 69, 10 Ohio Op. 338, 341 (C.P. 1938), an Ohio

court recognized the following privilege as a defense to

a right of privacy claim:

|The right of privacy! does not exist in the dis-

semination of news and news events, nor in the dis-

cussion of events of the life of a person in whom the

public has a rightful interest, nor where the publica-

tion would be of a public benefit, as in the case of

a candidate for public office.

Two years later this privilege was again applied in

Johnson v. Scripps Publishing Co., 32 Ohio L. Abs. 423,

431, 18 Ohio Op. 372, 379-80 (C.P: 1940):

All authorities which recognize “right of pri-

vacy” as a legal right for the violation of which there

is a legal remedy agree upon certain fundamentals

namely:

(a) The right of privacy does not prohibit

publication of matter which is of public or general

interest, ...

In its detailed analysis of the competing societal and

constitutional interests present in this case, the Ohio Su-

preme Court reasoned that the “public interest” privilege

afforded the press in the more traditional privacy actions

should also be available as a defense to right of publicity

claims. Thus, the decision of the Ohio Supreme Court

merely reaffirmed the general theory of news media

privilege that has been applied for forty years as a defense

to privacy claims in Ohio, and extended that privilege to

the newly recognized right of publicity.

The privilege applied by the Ohio court is also con-

sistent with news media privileges applied to right of

publicity claims arising in other jurisdictions. In Rosemont

Enterprises, Inc. v. Random House, Inc., 58 Misc. 2d 1,

294 N.Y.S.2d 122 (S. Ct. 1968). aff'd, 32 App. Div. 2d 892,

301 N.Y.S.2d 948 (1969), a New York court protected

the publication of a biography of Howard Hughes against

a claim that his right of publicity was violated.

The publication of a biography is clearly outside the

ambit of the “commercial use” contemplated by the

“right of publicity” and such right can have no ap-

plication to the publication of factual material which

is constitutionally protected. Just as a public figure’s

“right of privacy” must yield to the public interest

so too must the “right of publicity” bow where »: ~)

conflicts with the free dissemination of thoughts,

ideas, newsworthy events, and matters of _ vublic

interest. Id. at 6, 294 N.Y.S. 2d at 129 (emphasis

added ).

This news media privilege has been applied to ap-

propriation cases in New York regardless of whether the

basis of the claim is New York’s right of privacy statute

or the common law right of publicity. Man v. Warner

Bros., Inc., 317 F. Supp. 50 (S.D.N.Y. 1970) (plaintiff

denied recovery on free press grounds for the commerciul

use of his forty-five second musical performance); Cur-

rent Audio, Inc. v. RCA Corp., 71 Misc. 2d 831, 337

N.Y.S.2d 949 (S. Ct. 1972) (unauthorized taping and

commercial! distribution of an interview with Elvis Presley

does not constitute violation of his right of publicity);

Paulsen v. Personality Posters, Inc., 59 Misc. 2d 444, 299

N.Y.S.2d 501 (S. Ct. 1968) (commercial sale of presiden-

tial poster of comedian Pat Paulsen privileged as against

right of publicity claim).'

' Petitioner has soughi to distinguish Man v. Warner Bros.,

Inc. and similar New York cases by arguing that the claims

were governed by New York's right of privacy statute and not

a common law right of publicity. (Brief for Petitioner, p. 10 n. 1).

This distinction is inaccurate for New York Courts have held

that both the statutory right of privacy and the common law

right of publicity are limited by an identical free press privilege.

Paulsen v. Personality Posters, Inc., supra at 450-51, 299 N.Y\S.

2d at 508-509; Rosemont Enterprises, Inc. v. Random House, Inc.,

supra at 6, 294 N.Y.S.2d at 129.

B. The privilege applied by the Ohio court is con-

sistent with First Amendment principles articu-

lated by this Court.

In Time, Inc. v. Hill this Court acknowledged that

freedom of the press imposes certain necessary limita-

tions on the right of privacy. The Court reasoned that a

broadly defined freedom of the press is constitutionally

required to provide the breathing space essential to fruit-

ful exercise of this most important First Amendment free-

dom. 385 U.S. at 389. These principles were recently re-

affirmed in Cox Broadcasting Corp. v. Cohn, 420 US.

469, 496 (1975), where the Court concluded that the

First Amendment “will not allow exposing the press to

liability for truthfully publishing information released

to the public in official court records” even if such disclos-

ure places in the public domain delicate and private

matters.”

Petitioner’s contention that Gertz v. Robert Welch,

Inc. and its progeny call into question the Ohio court’s

use of the rationale of Time, Inc. v. Hill in a state right of

publicity case is unsound. In Gertz, this Court held that

the actual malice standard of New York Times Ca. v.

Sullivan abridged the states’ legitimate interest in pro-

viding a legal remedy for falsehoods injurious to the repu-

tation of a private individual. 418 U.S. at 345-46. The

Gertz court reemphasized the paramount importance of

a free press as the foundation of a free society, but rec-

*The Cox decision suggests that truthful reports of matters

of public interest will be afforded the strongest constitutional

protection:

{[Tlhe constitutional necessity of recognizing a defense of

truth is equally implicit in our statement of the permissible

standard of liability for the publication or broadcast of de-

famatory statements whose substance makes apparent the

substantial danger of injury to the reputation of a private

citizen, 420 U.S. at 499. (Powell, J. concurring).

) )

aoe

ognized that in a free society there is a strong state inter-

est in protectiag the good name and dignity of the in-

dividual. As expressed by Justice Stewart in Rosenblatt v.

Baer, 383 U.S. 75, 92 (1966) (Stewart, J. concurring):

|The law of defamation| reflects no more than our

basic concept of the essential dignity and worth of

every human being—a concept at the root of any

decent system of ordered liberty. The protection of

private personality, like the protection of life itself,

is left primarily to the individual States under the

Ninth and Tenth Amendments. But this does not

mean that the right is entitled to any less recognition

by this Court as a basis of our constitutional system.

The Gertz decision was founded on the Court’s desire

to forge an accommodation of these sometimes competing,

essential interests. While Petitioner may have certain

commercial rights in his “human cannonball” act, they

hardly qualify as essential to “any decent system of

ordered liberty’. In this case Petitioner has gained the right

of recovery against those making commercial use of his

name and likeness. Commercial appropriation is the foun-

dation of the right of publicity and is its most important

facet. The privilege articulated by the Ohio court does not

affect this aspect of the right of publicity.

The Ohio Supreme Court recognized the significant

distinction between defamation claims made by private

individuals and right of publicity claims asserted by public

performers and personalities. In the Ohio court’s view,

there was no fundamental societal interest which required

a significant abridgment of First Amendment freedoms in

right of publicity cases. The court wisely reasoned that the

“chilling effect” which results from inadequate free press

protection in libel and false light cases would similarly

affect the news media if a strong privilege were not af-

forded the press in defense of right of publicity claims.

This chilling effect acts as an actual restraint on the press

in the form of self censorship. A broadcaster who must

constantly evaluate whether a jury would find his use of

a performer’s name or likeness “reasonably undertaken

in discharge of the broadcast media’s right and responsi-

bility to inform the public of the happening of a news-

worthy event” ( Brief for Petitioner. pp. 30-31) will tend

to limit the scope of news coverage given public perform-

ances and personalities.

Petitioner is asking this Court to (i) strip the media

of the right to independently determine what constitutes

news and (ii) narrowly define news so as to exclude mate-

rial having entertainment value. Such action would have

a profound adverse effect on the media.

Much news is in various ways amusing and for

that reason of special interest to many people. Few

newspapers or news magazines would long survive if

they did not publish a substantial amount of news on

the basis of entertainment value of one kind or an-

other. This may be a disturbing commentary upon our

civilization, but it is nonetheless a realistic picture of

society which courts shaping new juristic concepts

must take into account. In brief, once the character

of an item as news is established, it is neither feasible

nor desirable for a court to make a distinction between

news for information and news for entertainment in

determining the extent to which publication is priv-

ileged. Jenkins v. Dell Publishing Co., 251 F.2d 447.

451 (3d. Cir), cert. denied, 357, US. 921 (1958)

(footnotes omitted).

This Court must not second guess in each case the

manner and extent of news coverage given a public event.

Such interference with the function of a free press, absent

some fundamental competing interest, can only encourage

further attempts to narrowly define and governmentally

control what constitutes news.

C. The Ohio court did not totally immunize the press

from right of publicity claims.

Although the Ohio court could have granted total

immunity to the media in right of publicity cases without

presenting any constitutional question, the Ohio court did

not do so. Rather than “immunize” the press (See Brief

for Petitioner, p. 11), the court recognized two bases for

defeating the media privilege.

The first basis, that “the actual intent . . . was to

appropriate the benefit of the publicity for some non-

public use,”’ provides a standard for determining whether

news use is made of the performer’s name or likeness.

Under the facts of this case, the single use on Respondent's

nightly news program of a fifteen second film clip of the

performance is plainly a news use. See Zacchini v. Scripps-

Howard Broadcasting Company, supra at 235, 351 N.E.2d

at 461. Should the media, in a different case, broadcast

on a commercial program a concert given by a professional

entertainer, that use would be sufficient to establish intent

to appropriate the benefit of the publicity for a non-priv-

ileged use.

The second basis for defeating the privilege, that “the

actual intent of the media was to injure the individual,”

comports with the express malice limitation long applied

by the Ohio courts in defamation actions." Under Ohio

“ Although it is unnecessary to reach the issue at this time,

Respondent believes that the “intent to injure” standard allows

the imposition of liability upon the press for the publication of

even truthful reports if done with “ill-will” or “express malice”.

This Court has rejected the concept that liability can be imposed

upon a mere showing of dislike or ill-will towards a plaintiff.

Garrison v. Louisiana, 379 U.S. 64 (1964). Petitioner has un-

fortunately confused the concept of “intent to injure” or “ex-

press malice” with that of “actual malice” as defined by this

Court. While Petitioner characterizes the Ohio court’s opinion

as allowing recovery only upon a showing of “actual malice”

(See, e.g., Brief for Petitioner, p. 9), it is apparent upon a care-

ful reading of the opinion that a lesser standard was applied.

law the privilege of the press to publish and disseminate

news may be lost if the publication is made with express

malice, that is, out of a sense of ill will, hatred or revenge.

34 On1o Jur. 2d Libel and Slander $58 at 224 (1958).

Ohio courts have long considered and applied this express

malice test, which, like the Ohio Supreme Court’s actual

intent test, is a subjective one. E.g., Liles v. Gaster, 42

Ohio St. 631 (1885); Torski v. Mansfield Journal Co., 100

Ohio App. 538, 137 N.E.2d 679 (1956). A court would

have no more difficulty applying this basis for defeating

the privilege in right of publicity cases than it has had in

applying the express malice test in libel actions, For

example, had Respondent’s script alleged that Petitioner's

act was a fraud, and had the film strip been edited so as

“to falsely show that Petitioner leaves the “cannon” prior

to the explosion with the assistance of a spring-gun mech-

anism, Respondent’s intent to injure Petitioner would be

evident.

The Ohio court has not seriously limited Petitioner's

rights by applying a privilege which recognizes the para-

mount concern our society has for freedom of the press.

In the words of the Supreme Court of Ohio:

[T|he primary value which one society places upon

the freedom of speech and of press requires that

we reject |Petitioner’s| viewpoint. The press, if it

is to be able to freely report matters of public interest,

must be accorded broad latitude in its choice of how

much it presents of each story or incident, and of the

emphasis to be given to such presentation. No fixed

standard which would bar the press from reporting

or depicting 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. 47

Ohio St. 2d at 235, 351 N.E.2d at 461. (emphasis

added ).

As the foregoing analysis establishes, the decision of

the Ohio Supreme Court in this case extending to right

of publicity cases the rule pertaining to privacy cases since

1938 is neither novel nor unreasonable and is consistent

with fundamental free press concerns, both state and fed-

eral.

IV. Any Remand For Further Proceedings In This Case

Must Be to the Ohio Supreme Court.

Petitioner's position that the United States Supreme

Court can and should define the specific news media priv-

ilege to be applied under Ohio common law constitutes

the single most novel proposition in his brief. His sug-

gested procedural disposition of the case, however, is only

slightly less extraordinary. Petitioner suggests that this

Court deal directly with the Ohio Court of Common Pleas

if any remand is necessary. While this Court may remand

a federal case to either a Circuit Court of Appeals or a

District Court, the Court’s practice has always been to

remand state cases to the highest state court for further

proceedings not inconsistent with the opinion of the Court.

Until the instant case, it had always been accepted that a

state supreme court has the right and power to control

proceedings in the inferior courts of that state. As stated

in 14A F. Poore, CycLopepia or FEDERAL PROCEDURE

$69.77 at 149 (3d ed. 1965):

The state court is not required to submit the

cause to new proceedings, if it has power to make a

new judgment conforming to what was decided. The

enforcement of the mandate upon lower state courts

is within the power of, and will be left in the first

instance to, the highest state court whence came the

cause, and to which it was remanded on reversal for

further proceedings. (footnotes omitted).

See Southern Ry. Co. v. Kentucky, 284 U.S. 338, 341

(1932), In re Royall, 125 U.S. 696, 697 (1888).

If this Court requires any further proceedings in this

matter, the cause should be remanded to the Ohio Supreme

Court in the first instance for disposition in a manner con-

sistent with this Court’s mandate. Thus, if this Court

should choose to establish advisory federal constitutional

standards applicable to right of privacy claims of this

nature, the Ohio Supreme Court should be given an oppor-

tunity, inter alia, to (i) choose to expand upon the mini-

mum federal standard for protection of the free press (See

Gertz v. Robert Welch, Inc., supra) or (ii) confirm that

state common law or constitutional principles require a

broader news media privilege in Ohio than the minimum

allowed by this Court. (See, e.g., AAFCO Heating and Air

Conditioning Co. v. Northwest Publications, Inc., supra).

In accordance with well settled principles of judicial

review, this Court should, in fact, remand the case to the

Ohio Supreme Court before establishing any such advisory

standard if the Court believes such standard must be

defined in the context of this case. It is Respondent’s

position that the Ohio Supreme Court’s decision is clearly

one of state law. If this Court disagrees, it must ascertain

that the decision is in fact grounded on federal law before

treating any federal question. The Ohio Supreme Court

is the appropriate state court to consult as to the basis for

its decision. Dept. of Mental Hygiene v. Kirchner, 380

U.S. 194 (1965), Minnesota v. National Tea Co., 309 U.S.

551 (1940). See generally, Note, 62 Cotum. L. Rev. 822

(1962). Unless the Ohio Supreme Court advises that its

decision was compelled by its view of federal law, this

Court should not act.

Thus, if this Court determines that further proceed-

ings are required in this case, it should remand the case

to the Ohio Supreme Court for disposition in accordance

with its mandate.

CONCLUSION

For the foregoing reasons, Respondent respectfully

submits that the writ of certiorari should be dismissed as

improvidently granted or, alternatively, that the opinion

of the Supreme Court of Ohio should be affirmed.

Respectfully submitted,