# Opposition — Pro Arts, Inc. v. Factors Etc., Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1954%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 908 ## Text — Supreme Coun, UP] | FILED JAN 31 (979 IN THE MICHAEL RCDAK, JR., CLERR Supreme Court of The Anited States Octoser TERM, 1978 No. /& -6942 Pro Arts, Inc. and Stop anp SHop Compantss, Ino., Petitioners, v. Factors Erc., Inc. and Boxcar ENTERpRisEs, INc., Respondents. On PETITION FoR A WRIT OF CERTIORARI TO THE Unitep States Court or APPEALS FOR THE SEconpD CinculIrT RESPONDENTS’ BRIEF IN OPPOSITION MicHakE. C. SILBERBERG 645 Fifth Avenue New York, New York 10022 (213) 935-9800 ARTHUR FIELDS AND Epwarp A. Woops 9401 Wilshire Boulevard Beverly Hills, California 90212 (213) 273-6333 Attorneys for Respondents oie) hy INDEX TABLE OF AUTHORITIES................... I i ce See ct he QUESTIONS PRESENTED BY PETITION .... STATEMENT OF THE CASE ................ REASONS WHY THE WRIT SHOULD BE Ee Os oe rer ina cies ka de 1. NO REASON EXISTS FOR THE GRANT OF CERTIORARI SINCE THE OPINION AND RATIONALE OF THE ZACCHINI CASE ARE FULLY DETERMINATIVE OF THE ISSUES PRESENTED BY PETI- po I ee eee ee ee ee Te A. Petitioners’ Commercia! Souvenir Posters Do Not Constitute a Legitimate Effort to Disseminate News, Are Not Equivalent to Posters Which Do Communicate Ideas or Disseminate Newsworthy Information and Therefore Are Not Entitled to the Same First Amendment Protection ........... B. Since Petitioners Have Presented No Meaningful Distinctions Between Zacchini and the Instant Case, Zacchini Controls and the Petition Should Be Denied ...... C. The Paulsen and Current Audio Opinions Relied Upon By Petitioners Are Consistent with Zacchini and the Decisions Below ... 15 17 2. NO QUESTIONS RAISED BY PETITION- ERS IN THE INSTANT CASE WERE LEFT UNANSWERED IN ZACCHINI 20 3. THE INJUNCTION ENTERED AGAINST PETITIONERS IS SUFFICIENTLY NAR- ROW TO RESTRAIN PETITIONERS WITHOUT ANY ABROGATION OF FIRST AMENDMENT RIGHTS ................. 21 SE nc hh ctc ea eet saksaes ton an eres 22 ei SLi n pide ae ape eee aan aeeeS AA-1 iin, TABLE OF AUTHORITIES Cases Page Baldwin v. Redwood City, 540 F.2d 1360 (9th Cir. 1976), cert. denied, 431 U.S. 913 (1977) ........ 12 Bates v. State Bar of Arizona, 433 U.S. 350 (1977) 7,14 Current Audio, Inc. v. RCA Corporation, 71 Misc.2d 831, 337 N.Y.S.2d 949 (Sup.Ct. 1972) . 10, 17,18 Factors Etc., Inc. and Boxcar Enterprises, Inc. v. Creative Card Co., et al., 444 F.Supp. 279 OE ooo >. 54's Gums’ uae boas om oo Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975), cert. denied, 423 U.S. 930 (1975) ..... 7,13 Groucho Marx Productions, Inc. v. Playboy Enter- prises, Inc. (No. 77-1782, S.D.N.Y. 1977) ...... 18 Guglielmi _v. Spelling-Goldberg Prods., 140 Cal. Rptr. 775 (Cal.Ct.App., 2nd App.Dist. 1977) ... 12 Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), cert. denied, Sy MR A WO oo ic nw cancec cess sees 4,7 Hernandez v. Hanson, 430 F.Supp. 1154 (D.Neb. AS CR aan et ee Ore ee ee ae 13 Hicks, et al. v. Casablanca, et al., 77 Civ. 5399 (LWP) (S.D.N.Y., filed September 19,1978) .... 11 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) 11 Man v. Warner Bros., Inc., 317 F.Supp. 50 (S8.D.N-Y. ns ing ae eh hailed uth ao aS a a oc ks 11 Paulsen v. Personality Posters, Inc., 59 Misc.2d 444, 299 N.Y.S.2d 501 (Sup.Ct. 1968) ....... 4,5, 17,18 Rosemont Enterprises, Inc. v. Urban Systems, Inc., 72 Mise.2d 788, 340 N.Y.S.2d 144 (1973) as a iy a= Page Spinar v. United States, 440 F.2d 1241 (8th Cir. ES, 25 Leh cates J weds. See Capa pRSeaN 13 Universal City Studios v. Ideal, 3 Media Law Re- ~ porter 1297 (S.D.N.Y. 1977) .............5045: 11 University of Notre Dame du Lac v. Twentieth Century Fox Film Corp., 22 A.D. 2d 452, 256 Se IE I wei Vain 0b eee eye vgn ge 11 Winters v. New York, 333 U.S. 507 (1948) ........ 11 Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849 (1977) . .4, 6, 10, 15, 16, 17, 19, 20 U.S. Constitutional Amendments: Amendment I ............. 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20, 21 Miscellaneous 91 Harvard Law Review 208-214 (1977)........ 15 Se eee ee IN THE Supreme Court of The United States Octoser TgerM, 1978 No. 12-492 Pro Arts, Inc. and Stop anp SHop Compantrs, Ino., Petitioners, v. Factors Erc., Inc. and Boxcar Ewnrerprises, Ino., Respondents. On PETITION For A Writ or CERTIORARI TO THE Unirtep States Court or APPEALS FOR THE SEconpD Circuit RESPONDENTS’ BRIEF IN OPPOSITION The respondents Factors Etc., Inc. and Boxcar Enter- prises, Inc. respectfully request that this Court deny the petition for writ of certiorari seeking review of the Second Circuit’s opinion in this case. That opinion is reported at 579 F.2d 215 and is reprinted in Appendix C of the petition. OPINIONS BELOW The opinion of the United States District Court for the Southern District of New York granting a preliminary injunction is reported at 444 F.Supp. 288 and is reprinted in Appendix A of the petition. That opinion recites that the instant action was a companion action to Factors Etc., = Inc. and Boxcar Enterprises, Inc. v. Creative Card Co., et al., which is reported at 444 F.Supp. 279, and the find- ings and reasonings of the Creative Card opinion were specifically incorporated in the District Court opinion in the instant action. The Creative Card opinion is re- printed in Appendix AA of this Brief in Opposition.* QUESTIONS PRESENTED BY PETITION 1. Do petitioners have an absolute First Amendment privilege to mass merchandise their unauthorized celeb- rity souvenir poster bearing Elvis Presley’s photo- graph which would otherwise constitute an appropriation of his judicially recognized “right of publicity” merely because the poster was distributed in the days immedi- ately following Mr. Presley’s death and bears the legend “In Memory .. . 1935-1977”? 2. Does an injunction restraining petitioners from selling or distributing an unauthorized celebrity souvenir poster of Elvis Presley or otherwise utilizing for com- mercial profit Mr. Presley’s name, image or likeness constitute an impermissibly overbroad restraint of their First Amendment rights? STATEMENT OF THE CASE This petition is filed with respect to an Order of the Court of Appeals of the Second Circuit which affirmed an Order of the United States District Court for the Southern District of New York, Charles H. Tenney, J., granting respondents’ motion for a preliminary injunc- tion. That injunction restrains petitioners during the pendency of this action from further sale or distribution of their unauthorized commercial souvenir poster of * Ref to the appendices in the petition and this Brief in Gonedlion are prefaced with the a ix letter(s) followed by the page number (e.g., Al, C3, ). or the renowned entertainer Elvis Presley and from other- wise utilizing for commercial profit, the name, image or likeness of Mr. Presley, who met a tragic and untimely death on August 16, 1977. This action is jointly brought by Boxcar Enterprises, Ine. (“Boxcar”), a Tennessee corporation, to which Mr. Presley during his lifetime transferred, and which he thereafter utilized as the vehicle to commercially exploit, his judicially recognized “right of publicity” and by Factors Ete., Inc. (“Factors”). (C-2 and 0-3). Factors, a Delaware corporation, is one of the world’s largest mass merchandisers of novelty items, specializing in the com- mercial exploitation of celebrities’ “rights of publicity”. On August 18, 1977, two days after Elvis Presley’s death, Factors acquired from Boxcar, by written license agree- ment, the exclusive right to commercially exploit Mr. Presley’s name and likeness “in connection with the manu- facture, sale, advertising and distribution of all mer- chandise, of whatever kind, size or nature”. This agree- ment was confirmed and consented to by Mr. Presley’s long-time personal manager, Colonel Tom Parker, and Mr. Vernon Presley, Elvis’ father and the executor of his estate, which will benefit substantially from the royalties paid by Factors (C-3). Factors paid Boxcar $100,000 on execution of the agreement against a guarantee of $150,000. Immediately upon Presley’s death, petitioner Pro Arts, Inc. (“Pro Arts”) decided to illegally appropriate for itself a share of the market for Elvis Presley memora- bilia. (C-3). Three days after Presley’s death, Pro Arts published and commenced marketing, without authority from anyone related to the Presley interests, a pictorial celebrity souvenir poster of Elvis Presley using a photo- graph, the copyright of which it claims to have purchased from a staff photographer of the Atlanta (Georgia) Journal. On the poster were inserted the words “In — ; Memory .. . 1935-1977”. The poster was thereafter sold by petitioner Stop and Shop Companies, Inc. through one of its divisions. (C-3 and C-4). The Decisions Below In carefully reasoned opinions filed in the instant action and a companion action brought against Creative Card Co., the District Court held that respondents had satisfied each of the tests entitling them to preliminary injunctive relief. Relying upon the Second Circuit’s landmark de- cision in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), cert. denied, 346 U.S. 816 (1953), and the recent United States Supreme Court opinion in Zacchini v. Scripps-Howard Broadcast- ing Co., 433 U.S. 562, 97 S.Ct. 2849 (1977), the District Court held that the death of Elvis Presley did not operate to divest Boxcar of the rights it had acquired from Mr. Presley during his lifetime, that Mr. Presley possessed a valuable “right of publicity” which “inhered in and was exercised by [him] in his lifetime... was assignable by him and was so assigned, that it survived his death and was capable of further assignment.” (AA-7). The District Court premised its finding of irreparable injury upon (a) the “evanescent” nature of the market for Presley memorabilia, (b) the “rush to capitalize on the Presley image in [the] post-mortem period” and (c) the jeopardy to Factors’ licensing program by Factors’ “inability to grant exclusive rights” due to the presence of [petitioners’] goods in the marketplace. (AA-13). The District Court held that petitioners’ reliance for a First Amendment newsworthy privilege upon Paulsen v. Personality Posters, Inc., 59 Misc.2d 444, 299 N.Y.S.2d 501 (Sup.Ct. 1968), was “far off the mark” since Paulsen was “decided in favor of the unlicensed poster manu- facturer because Paulsen’s choice of the politicai arena for satire made him ‘newsworthy’ in the dirst amendment = a sense.” (AA-11 and AA-12; emphasis added). In a foot- note the court also remarked that Paulsen had since been held “unique to its facts” by the very court which decided it. (AA-12). The Court concluded that “there is no constitutional protection for selling posters of Elvis Presley as Elvis Presley”. (AA-12). On appeal petitioners did “not challenge the trial court’s finding of possible irreparable harm”, but only its finding that respondents “had demonstrated probable success on the merits.” (C-8) The Court of Appeals affirmed the District Court opinion, holding that petitioners had “demonstrated a strong likelihood of success on the merits at trial” (C-15), and that Boxcar’s exclusive right to commercially exploit Presley’s name and likeness was exercised during Presley’s life, survived his death and was validly trans- ferred to Factors (C-14). The Court of Appeals also summarily rejected petitioners’ assertion that pursuant to Paulsen, petitioners were privileged under the First Amendment to print and distribute their own Elvis Presley poster as a means of expression concerning a “newsworthy event” (C-14). The Court held that it could not “accept [petitioners’] contention that the legend ‘In Memory ...’ placed its poster in the same category as one picturing a presidential candidate, albeit a mock candidate.” (C-15). REASONS WHY THE WRIT SHOULD BE DENIED 1. NO REASON EXISTS FOR THE GRANT OF CERTIORARI SINCE THE OPINION AND RA- TIONALE OF THE ZACCHINI CASE ARE FULLY DETERMIN/ TIVE OF THE ISSUES PRESENTED BY PETITIONERS. The Supreme Court has already held that a state con- stitutionally may prohibit the unauthorized appropriation of an entertainer’s “right of publicity” even where the sili appropriation constitutes a legitimate effort to com- municate newsworthy information and the unauthorized appropriator is a recognized member of the communica- tions media. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849 (1977). In Zacchini the Court held that even a television station does not enjoy an absolute First Amendment privilege to utilize for its newscasts newsworthy events if that use constitutes an appropriation of an individual’s right of publicity. It is respectfully submitted that the opinion and ra- tionale of Zacchini are fully determinative of the issues presented by petitioners, and that, in fact, the instant action presents a much stronger case than Zacchini for the prohibition of an unauthorized appropriation of an entertainer’s “right of publicity” since (1) petitioners’ souvenir posters do not constitute a legitimate effort to disseminate news and (2) even assuming arguendo that a photograph of Elvis Presley and the years of his birth and death were newsworthy information, petitioners unquestionably have utilized that information solely for the purpose of commercial exploitation in derogation of respondents’ right of publicity. A. Petitioners’ Commercial Souvenir Posters Do Not Constitute a Legitimate Effort to Disseminate News, Are Not Equivalent to Posters Which Do Oom- municate Ideas or Disseminate Newsworthy Informa- tion and Therefore Are Not Entitled to the Same - First Amendment Protection. Petitioners buttress their argument seeking a grant of certiorari on the unspoken and unwarranted assump- tion that mass merchandised celebrity souvenir posters are legally indistinguishable from posters which com- municate or disseminate newsworthy information or seek to inform or encourage the dissemination of ideas. It is respectfully submitted that petitioners’ mere invocation of the word “poster” to describe their souvenir merchan- a dise is insufficient to attach to their celebrity souvenir posters the protection traditionally afforded by the First Amendment. Petitioners’ assertion that their celebrity poster is con- stitutionally privileged because it carries a “message of public interest” is baseless (petition, p. 9). Petitioners do not seek to inform the public. Petitioners are mass merchandisers interested only in profiting from the sale to the public of a “remembrance” of Elvis Presley.' The poster petitioners wish to peddle is no different than the Elvis Presley buttons, badges, tote bags and T-shirts sold by other mass merchandisers. Petitioners’ celebrity poster is intended as a memento in the same sense that the personal scarves Presley flung to adoring fans at his concerts were intended as mementos. Respondents re- spectfully submit that even petitioners would not assert a constitutional privilege for such items. The rationale supporting First Amendment protection of political posters and commercial advertising is wholly inapposite to celebrity posters, memorabilia and souvenir merchandise. Even petitioners do not suggest that their personality posters communicate any ideas or views about “important public questions and policies” or serve “individual and societal interests in assuring informed and reliable decision-making”. Glasson v. City of Louis- ville, 518 F.2d 899 (6th Cir. 1975), cert. denied, 423 U.S. 930 (1975); Bates v. State Bar of Arizona, 433 U.S. 350 (1977). The medium of posters as a means of political expression and dissent is not the medium of celebrity souvenir posters. In fact, petitioners’ celebrity souvenir posters are merely enlarged bubble gum cards, such as those involved in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), cert. 1 Since petitioners’ souvenir merchandise is unauthorized, peti- tioners need mpi 6 any royalties to respondent Boxcar. Thus, petitioners are attempting to unfairly compete with re- spondents by selling souvenir merchandise at a lower price. = denied, 346 U.S. 816 (1953), and about which there can be no serious claim of First Amendment privilege.’ In their attempts to assert constitutional protection for their souvenir merchandise, petitioners have boxed them- selves into a corner from which they cannot be extricated. If petitioners are asserting that their souvenir poster is constitutionally protected under the First Amendment because posters are a medium entitled to such protection without further analysis, then it is irrelevant whether petitioners affixed any message to the poster. However, as demonstrated herein, the medium of posters as a means of political expression is not the medium of celebrity sou- venir posters. Thus, constitutional protection does not at- tach automatically to a souvenir item labelled “a poster”. On the other hand, if petitioners are “ontending that it is their use of their souvenir poster which entitles them to First Amendment protection, because it carries a message of public interest, then it would follow that any other item of souvenir merchandise which also carried that message would be entitled to equal constitutional protection. Thus, under petitioners’ theory, any ash tray, wastebasket, bed- spread, button, badge or tote bag embossed with a picture of Elvis Presley and the words “In Memory... 1935- 1977” would be entitled to First Amendment protection. It is respectfully submitted that such a position is prepos- terous. It also would flow from petitioners’ contention that if Presley were still alive and became married or a parent, petitioners would be entitled to claim a First Amendment privilege to manufacture, distribute and sell, without Presley’s consent, a celebrity poster or other merchan- dise portraying Presley and his wife and/or children imprinted with the appropriate marriage and birth 2 Petitioners certainly cannot be suggesting that an unauthorized manufacturer of bubble gum ten cards would be deserving of First Amendment protection against a claim of infringement on the ground that the cards provided players’ statistics. nisl dates.* Respondents respectfully submit that such argu- ments are untenable. Petitioners’ suggestion that their celebrity souvenir poster is a legitimate effort to disseminate news is a thinly transparent sham. Petitioners are seeking refuge behind the protective skirts of the First Amendment in order to engage in the crassest commercial rip-off. To argue that the addition of the words “In memory .. . 1935-1977” affords petitioners First Amendment protec- tion for their celebrity souvenir poster makes a mockery of the First Amendment and ignores petitioners’ patent and belated efforts to cloak their purely commercial activities in the protective mantle of the First Amend- ment. Petitioners have sought to commercially capitalize on Elvis Presley’s death by selling an unauthorized sou- venir poster which they could not and did not do during Presley’s life. Petitioners’ arguments in the District Court and Court of Appeals evidenced their belief that they could defend their production and sale of unau- thorized celebrity souvenir posters on the theory that Presley’s right of publicity was personal and died with him. However, as both lower courts opined, Presley’s right of publicity was assignable by him, was so assigned, survived his death and was validly transferred to re- spondent Factors. Having been rejected in their underly- ing theory, in an effort to seek the aid of a higher court petitioners now attempt to fashion a constitutional argu- ment out of whole cloth, by suggesting that they were engaged in a legitimate effort to disseminate news. ’Respondents doubt that petitioners wish to concede that the accidental death or divorce of one of their major commercial poster properties such as Farrah Fawcett-Majors would it others to immediately market ——- posters, thereby de- stroying their exclusive rights, as long as the appropriator affixed a “magical” label to the ome —_— =a Petitioners must assume the grossest naivete of this Court to ask it to believe that petitioners’ purpose in manufacturing and selling their celebrity souvenir poster was to convey “a message of public interest”. In reality, petitioners’ purpose from the outset can be simply de- scribed: to obtain something for nothing. The Court in Zacchini addressed this precise question when it said that: “(The rationale of protecting the right of publicity is] one of preventing unjust enrichment by the theft of good will. 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 nor- mally pay.” 433 U.S. at 576 (See also AA-9, C-10 and C-11). (emphasis added). Petitioners’ obvious intent was to capitalize upon the substantial demand for Elvis Presley memorabilia im- mediately upon his death without having to pay anything for such right. The rationale espoused by the Court in Zacchim prohibits such acts and petitioners’ belated effort to claim constitutional protection for their crass conduct rings hollow. It is well established that souvenir merchandise and ordinary subjects of commerce such as petitioners’ celeb- rity poster do not communicate ideas or opinions and are not afforded constitutional protection. Although it is clear that “entertainment, as well as news, enjoys First Amendment protection” (Zacchini at 578), it is also true that none of the cases cited by petitioners afford protec- tion to, or even mention, celebrity posters or other souve- nir merchandise. Rather, the cases cited by petitioners deal with (a) press conferences, “the very symbol of a free and open press” (see Current Audio, Inc. v. RCA Corporation, 71 Mise.2d 831, 337 N.Y.S8.2d 949 (Sup.Ct. ee ag, — 1972) ; (b) magazines (see Winters v. New York, 333 U.S. 507 (1948), Universal City Studios v. Ideal, 3 Media Law Reporter 1297 (S.D.N.Y. 1977) ; and (c) motion pictures, see Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), Man v. Warner Bros., Inc., 317 F.Supp. 50 (S.D.N.Y. 1970), and University of Notre Dame du Lac v. Twenti- eth Century Fox Film Corp., 22 A.D. 2d 452, 256 N.Y.S. 2d 301 (1965), in which the court specifically said: “Tt is at once apparent, when we deal with the content of a book or motion picture, that we deal with no ordi- nary subject of commerce. Motion pictures, as well as books, are ‘a significant medium for the communication of ideas.’ (emphasis added). Two recent cases involving an entertainer’s right of publicity and defendants’ claimed First Amendment priv- ileges, one from the District Court for the Southern Dis- trict of New York and the other from the Court of Appeals in the State of California, evidence further ju- dicial recognition of the obvious distinction between (a) celebrity posters and related items of souvenir merchan- dise and (b) other media legitimately entitled to First Amendment protection. In Hicks, et al. v. Casablanca, et al., 77 Civ. 5399 (LWP), filed September 19, 1978, the District Court for the Southern District of New York faced the question with respect to Agatha Christie of “whether the right of publicity attaches where the name or likeness is used in connection with a book or movie”. The court there stated that: “... [MJore so than posters, bubble gum cards, or some other such ‘merchandise’, books and movies are vehicles through which ideas and opinions are dissem- inated and, as such, have enjoyed certain constitutional ae A cits protections, mot generally accorded ‘merchandise’.” (emphasis added; p.6) In Guglielmi v. Spelling-Goldberg Prods., 140 Cal.Rptr. 775 (Cal.Ct.App., 2nd App.Dist. 1977), the Court, in con- sidering the claim of Rudolph Valentino’s heir to the late actor’s surviving right of publicity and protesting the contents of a biography produced by defendants, stated that: “The public policy grounds for allowing biographies, however unauthorized, are different from those re- garding the issuance of posters or sweatshirts embla- zoned with the likeness of the deceased celebrity.” (em- phasis added) Thus, both California and New York courts have ac- knowledged a distinction between books and motion pic- tures on the one hand and sweatshirts, bubble gum cards and celebrity souvenir posters on the other hand, based rron the obvious recognition that ideas and opinions are disseminated through the former but not the latter, as a result of which the latter are not entitled to constitutional immunity from an otherwise valid misappropriation claim. Significantly none of the cases cited by petitioners for the proposition that celebrity souvenir posters are a medium of expression entitled to protection under the First Amendment deal with mass merchandised celebrity souvenir posters, except perhaps Paulsen, supra, which has been limited by the very court which decided it to its “nnique facts” and is readily distinguished below (see pp. 17-19). In Baldwin v. Redwood City, 540 F.2d 1360 (9th Cir. 1976), cert. denied, 431 U.S. 913 (1977), cited by peti- tioners, the Court invalidated an ordinance restricting — oo the display of political campaign posters on public thor- oughfares on the ground that the First Amendment pro- tected the expression of political opinions. In Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975), cert. denied, 423 U.S. 930 (1975), the Court affirmed plaintiff’s constitutional rights to hold up a political protest poster along a motorcade route scheduled to be traveled by the President of the United States when the message on the sign expressed plaintiff’s “views about important public questions and policies.” 518 F.2d at 904 (emphasis added). The only issue before the court in Spinar v. United States, 440 F.2d 1241 (8th Cir. 1971), also relied upon by petitioners, was whether certain posters were obscene under the prevailing standards established by the United States Supreme Court. Since the question of obscenity is not before this Court, it is respectfully submitted that Spinar has no application to the instant action. Hernandez v. Hanson, 430 F.Supp. 1154 (D. Neb. 1977), is also inapposite. That case dealt with the validity of a local school board regulation requiring approval prior to the dissemination on campus of certain literature. Al- though the Court found nothing per se unreasonable under the First Amendment about requiring prior approval of written distributions, it articulated the policy reasons supporting an open or less restricted distribution, em- phasizing that “a public school is a market place of ideas and early involvement in debate and comment and free exchange is essential to the development of the demo- cratic spirit necessary to the proper functioning of our government”. 430 F.Supp. at 1158. The rationale favor- ing unrestricted distribution of literature on school cam- puses does not apply to the unrestricted sale of celebrity souvenir posters in the instant case. Petitioners surely cannot seriously assert that their celebrity souvenir pos- ter of Elvis Presley is intended to or in fact will generate = “debate and comment and [a] free exchange [of ideas] essential to the development of the democratic spirit necessary to the proper functioning of our government.” Petitioners also rely upon an excerpt from a footnote in a dissenting opinion in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), to support their contention that celebrity posters are entitled to First Amendment pro- tection. Bates, which struck down restraints on attorney price advertising, discussed the basis underlying the pro- tection afforded commercial speech in certain instances: “Significant societal interests are served by such speech [which] ... serves to inform the public of the availability, nature, and prices of products and ser- vices, and thus performs an indispensable role in the allocation of resources in a free enterprise system. [citations]. In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking.” 97 S.Ct. at 2699. Bates is inapplicable to the instant case for at least two reasons. First, petitioners’ celebrity souvenir post- ers do not even rise to the level of commercial speech, which itself is protectible only in certain instances. Sec- ond, and more importantly, none of the reasons favoring the protection of commercial speech, including serving “individual and societal interests to assure informed and reliable decisionmaking”, apply to the sale of an Elvis Presley souvenir poster. Petitioners’ citation to a footnote in the dissenting opinion of Justice Powell (petition, p. 7) is somewhat misleading to the extent it suggests that the Court or Justice Powell stated that there is no distinction for First Amendment purposes between newspapers and celebrity souvenir posters. A review of the entire footnote indicates that Justice Powell suggested that there is-no distinction for purposes of attorney price < advertising between newspapers and other media which might contain that information, (97 S.Ct. at 2718). Thus, all of the cases cited by petitioners for the prop- osition that “posters are media of expression entitled to protection under the First Amendment” (petition, p. 6) involve posters which communicate ideas, disseminate newsworthy information, or serve important societal in- terests in decisionmaking. In contrast, the District Court below correctly recognized that the issue before it related to rights respecting commercial exploitation of “souvenir merchandise” (AA-2, AA-14 and AA-19). The Court of Appeals concurred, repeatedly referring to rights to market Presley “memorabilia”. (C-2, C-3, C-14, and C-15). B. Since Petitioners Have Presented No Meaningful Distinctions Between Zacchini and the Instant Case, Zacchini Controls and the Petition Should Be Denied. Although even petitioners acknowledge that Zacchini is the controlling case on the issue before the Court, they suggest four grounds of distinction between the instant action and Zacchini. However, it can readily be seen that no meaningful distinctions exist. Therefore the rationale of Zacchini mandates a denial of the petition. Petitioners first argue that in Zacchini a performer’s “entire act” was appropriated. However, an analysis of the Court’s opinion indicates that the question of whether an “entire act” is appropriated is not a workable test, and that the critical issues are the nature of the use made and the damage caused by the appropriation. See 91 Harvard L.Rev. 208-214 (1977). Petitioners’ crass com- mercial exploitation of Presley’s right of publicity and the damage caused thereby are clearly prohibited by Zacchini.* *It is submitted that Zacchini would not have been decided differently if the television station had instead sold unauthor- ized souvenir posters of Mr. Zacchini. == 16 With respect to the second claimed distinction, that the television station in Zacchini could have arranged its “own cannonball act”, it is just as evident that petitioners could have arranged for their own guitar player or singer on a souvenir poster rather than Elvis Presley, with respect to whom they have no rights. Petitioners’ third contention, that this case differs from Zacchini because in the latter the appropriation re- lated to the very activity by which the entertainer ac- quired his reputation, is also misplaced. The record is clear that Elvis Presley earned a substantial amount of money from licensing the use of his name and likeness on souvenir merchandise during his lifetime (AA-4). Zacchim does not hold that the appropriated activity need be the entertainer’s primary activity. For example, although the primary activity of a baseball player is playing ball, part of his income may well come from selling the right to use his name and likeness (see Hae- lan, supra). Finally, petitioners contend that Zacchini did not in- volve a prior restraint whereas the instant case does. The cases cited by petitioners for this proposition involve the imposition of restraints prior to a hearing. In the instant case, there was a full hearing and petitioners were afforded an opportunity to present evidence and conduct discovery prior to the issuance of any injunction. More importantly, if petitioners are correct, the absence of injunctive relief in the face of an unwarranted com- mercial appropriation of an entertainer’s right of pub- licity would totally emasculate the right of publicity. Thus, since it is apparent that the four grounds of dis- tinction asserted by petitioners are inapplicable, Zacchini is controlling and the petition must be denied. —_ oe C. The Paulsen and Current Audio Opinions Relied Upon By Petitioners Are Consistent with Zacchini and the Decisions Below. Despite the clear holding of Zacchini, petitioners none- theless argue that their activities are privileged and that their so-called “memorial poster” is protected as a “news- worthy” exception to the “right of publicity” — an excep- tion which they claim is established under New York law by two state trial court decisions rendered long before Zacchini, Paulsen v. Personality Posters, Inc., 59 Mise. 2d 444, 299 N.Y.S.2d 501 (Sup. Ct. 1968) and Current Audio, Inc. v. RCA Corporation, 71 Mise.2d 831, 337 N.Y.S.2d 949 (Sup. Ct. 1972). They assert that Paulsen considered the right of publicity and found that it did not apply to the sale of posters, particularly posters “in conjunction with the dissemination of news or public interest presentations” (petition, pp. 6-7). They infer that Current Audio affirmed the holding in the Paulsen case exempting the use of the name or likeness of a famous individual commemorating a newsworthy event (petition, pp. 7-8). Not only is the continuing vitality of Paulsen and Cur- rent Audio doubtful in the wake of the Zacchini decision, but we submit that petitioners’ activities are not privi- leged as legitimate news and, further, that petitioners’ arguments do violence to the holdings of Paulsen and Current Audio. Those cases afford them neither comfort nor protection. In Paulsen, a well known entertainer entered the 1968 Presidential race as the “STAG” party candidate. He brought his “right of privacy” action solely under Sec- tion 51 of the New York Civil Rights Law. He sought to 'These decisions of the lowest court of the State of New York were also rendered on motions rather than upon trial. — we enjoin distribution of posters bearing his likeness with the notation “For President.” The case was dismissed by the court. Noting that his candidacy “satirical or otherwise” had been the subject of comment by communi- cation media, including a front page news article in the Wall Street Journal, the court stated: “Tt is apparently plaintiff’s position that since ‘he is only kidding’ and his presidential activities are really only a ‘publicity stunt’ they fall outside the scope of constitutionally protected matters of public interest. Such premise is wholly untenable. When a well-known entertainer enters the presidential ring, tongue in cheek or otherwise, it is clearly newsworthy and of public interest. A poster which portrays plaintiff im that role, and reflects the spirit in which he approaches said role, is a form of public interest presentation to which pro- tection must be extended.” 299 N.Y.S.2d at 507 (empha- sis added). Thus, Paulsen involved a Presidential election —a uniquely newsworthy event given the broadest possible First Amendment protection. Indeed, the significant First Amendment questions and the issues of satire raised by Paulsen have resulted in that case being limited to its “unique facts” by the very court that decided it. See Rosemont Enterprises, Inc. v. Urban Systems, Inc., 72 Mise. 2d 788, 340 N.Y.S.2d 144 (1973). See also Groucho Marx Productions, Inc. v. Playboy Enterprises, Inc. (No. 77-1782, S.D.N.Y., filed December 30, 1977). In Current Audio the court correctly concluded that Elvis Presley’s appearance at a press conference was not part of the exercise of his “right of publicity” (which was accorded express recognition) and that, in effect, his statements at the press conference were intended as = a news and were freely available for that purpose.* In support of its holding, the court opined that: “A press conference stands as the very symbol of a free and open press...” Accordingly, it refused to enjoin defendant from marketing a magazine which included a phonograph recording of a portion of Presley’s press conference. No suggestion can reasonably be made by petitioners that celebrity souvenir posters stand as the very symbol of a free and open press. Most significantly, the so-called memorial poster is simply not a genuine attempt to convey news. The addi- tion of the words “In Memory . . . 1935-1977” to Mr. Presley’s picture is a mere subterfuge — a disingenuous and transparent effort to “appropriate the benefit of [Mr. Presley’s] publicity for a private use... .” Zacchini, supra, 97 §.Ct. at 2860, Stevens, J. dissenting. Thus, it is submitted that the District Court below properly held that “there is no constitutional protection for selling posters of Elvis Presley as Elvis Presley” (AA-12), that the Court of Appeals properly held that petitioner Pro Arts’ insertion of the legend “In Memory” did not place “its poster in the same category as one picturing a presidential candidate, albeit a mock candi- date” and therefore its poster “was not privileged as celebrating a newsworthy event” (C-15) and that both courts correctly rejected petitioners’ specious privilege argument. ®In that case, decided several years prior to Zacchini, the court refused to enjoin a magazine from publishing in 2+ iy record form excerpts from a press conference held by Mr. Pres- ley on the grounds that his appearance at the press conference had made words “newsworthy” and a matter of “public interest”, thereby investing others with the constitutional right to disseminate his words. In contrast, respondents are not seek- ing to enjoin the dissemination of news and the petitioners here can make no legitimate claim that they are disseminating news. News of Presley’s death and subsequent events were fully re- ported by the media. Respondents seek only to preserve the exclusivity of their rights which petitioners have crassly mis- appropriated for commercial profit. — eS 2. NO QUESTIONS RAISED BY PETITIONERS IN THE INSTANT CASE WERE LEFT UNAN. SWERED IN ZACCHINI. Even under the analysis suggested by Justices Powell, Brennan and Marshall in their dissent in Zacchini, the same result reached by the majority in Zacchini would be mandated in the instant case. In balancing an enter- tainer’s right of publicity and the public’s First Amend- ment rights, the dissent stated that an entertainer, hav- ing made a matter public, could not “consistently with the First Amendment, complain of routine news repori- age.” (emphasis added). Whatever else petitioners might argue, they would be hard pressed to suggest that their mass merchandised sale of their celebrity souvenir poster constitutes “routine news reportage”. The dissent also stated that it would have held that “When a film is used ... for a routine portion of a regular news program, ...the First Amendment [would] protect the station from a ‘right of publicity’ or ‘appro- priation’ suit, absent a strong showing by the plaintiff that the news broadcast was a subterfuge or cover for private or commercial exploitation.” (emphasis added). As previously discussed, petitioners’ merchandising of celebrity souvenir posters is in no sense tantamount to “a routine portion of a regular news program”. Moreover, in the instant case petitioners’ intention to engage in private commercial exploitation is unquestioned ; the only subterfuge is the disingenuous argument advanced in the petition that the poster carries a “newsworthy” message of public interest. ed a 38. THE INJUNCTION ENTERED AGAINST PETI- TIONERS IS SUFFICIENTLY NARROW TO RE- STRAIN PETITIONERS WITHOUT ANY ABRO- GATION OF FIRST AMENDMENT RIGHTS. As has been demonstrated above, petitioners’ assertion that their celebrity personality poster, which colistitutes nothing more than souvenir merchandise, is entitled to First Amendment protection is without support in law or fact. Accordingly, petitioners’ contention that the in- junction entered against them is impermissibly overbroad is baseless. Petitioners intentionally seek to confuse the issue when they state that “the injunction here . . . mandates blanket suppression of all future uses of the Elvis Presley name, likeness, or image...” (petition, p. 19). In fact, peti- tioners have merely been enjoined from manufacturing, distributing, or selling posters identical or similar to the offending commercial celebrity poster or utilizing for commercial profit the name, image or likeness of Elvis Presley. No prohibition against the use of Presley’s name, likeness or image has been imposed upon, or sought by respondents with respect to, any news or informa- tional coverage, whether in magazines, newspapers, tele- vision programs, books or other media relating to Elvis Presley’s life or death. The entry of the preliminary injunction in this action, contrary to petitioners’ claim, has had absolutely no chilling or dampening effect on members of the communi- cations media with respect to the use of Presley’s name, image or likeness. To the contrary, the fact of Presley’s death, which is the only arguably “newsworthy” item conveyed by petitioners’ poster, has been communicated to the public ad nauseum by every organ of the communi- cations media. The terms of the injunction restrain only petitioners and only msofar as such use is for commercial profit. Such an injunction is surely sufficiently limited to = i protect respondents’ rights without impinging upon any First Amendment rights of petitioners or any other person. CONCLUSION It is respectfully submitted that for all the foregoing reasons, the petition for writ of certiorari should be denied. Respectfully submitted, MicHakt C, SILBERBERG 645 Fifth Avenue New York, New York 10022 (212) 935-9800 ARTHUR FIELDS AND Epwarp A. Woops 9401 Wilshire Boulevard Ninth Floor Beverly Hills, California 90212 (213) 273-6333 Attorneys for Respondents AA-1 APPENDIX AA Opinion of the District Court UNITED STATES DISTRICT COURT Southern District of New York No. 77 Civ. 4400 (CHT) Oct. 12, 1977 —--—-- Factors Erc., Ino. anp Boxcar Enterprises, Ino., Plaintiff's, vs. Creative Carp Company, THE PostermMat Ino., Spec. Carp & Girt Matt, Ino., anp THE Carp CENTER, Defendants. AA-2 APPENDIX AA, Opinion of the District Court Factors Erc., Inc. anp Boxcar ENTERPRISES, INC., Plaintiffs, vs. Creative Carp Company, THE PosterMar Inc., SPECIAL Carp & Girt Matt, Inc., anp THE Carp CENTER, Defendants. No. 77 Civ. 4400 (CHT). United States District Court, S. D. New York. Oct. 12, 1977. OPINION TENNEY, District Judge. Plaintiffs have moved this Court for a preliminary in- junction pursuant to Rule 65 of the Federal Rules of Civil Procedure (“Rules”) to restrain defendant Creative Card Company from the manufacture, distribution and sale of any poster or other commercially exploitive souve- nir merchandise bearing the likeness of the late enter- tainer Elvis Presley. Plaintiffs claim possession of an exclusive right to that activity, based on a “right of publicity” assigned by Elvis Presley in life. Defendant Creative Card Company, an Illinois corporation, disputes the existence and assignment of this right, and has also moved for dismissal under Rule 12(b) on the grounds of lack of personal jurisdiction and/or improper venue in the Southern District of New York. The Court has determined that it has jurisdiction over defendant Cre- ative Card Company and that venue is properly laid here. — te = AA-3 Accordingly, the motion to dismiss under Rule 12(b) is denied. In addition, by the tests for preliminary relief articulated in this circuit, I conclude that plaintiffs have made “a clear showing of . . . probable success on the merits and possible irreparable injury.” Sonesta Inter- national Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973) (emphasis in the original). There- fore, plaintiffs’ motion under Rule 65 is granted. The reasons for the Court’s conclusions are set forth below. THE FACTS On August 16, 1977, Elvis Presley, without doubt a world famous celebrity-entertainer, died at the age of forty-two. During life his professional career and the commercial exploitation of his person were managed exclusively by “Colonel” Tom Parker,’ as demonstrated by the deposition of Col. Parker begun on September 30, 1977 and continued on October 1, 1977, and the docu- ments appended thereto. On March 26, 1956, Presley and Parker entered into a written management contract which, although it does not specifically allude to souvenir merchandise, authorizes Parker to act exclusively for Presley “in any and all fields of public and private enter- tainment . . . embracing any and all branches thereof now known or hereafter coming into existence.” Plain- tiffs’ Supplemental Memorandum, Exhibit C. However, that items of merchandise were clearly contemplated by the parties becomes apparent in later agreements includ- ing, inter alia, one concluded a few months later among Parker, Presley and a Mr. Saperstein of Special Projects, Inc., a merchandising company. Id., Exhibit D. The Special Projects organization was made “exclusive agent” for a period of time to license other firms “in connection 1Col. Parker acknowledges that his title is of the Southern rather than the military variety in his deposition, September 30, 1977, page 4, line 27. AA-4 with the sale, marketing and exploitation of consumer items.” Id. All manner of merchandise was thereafter covered by numerous licensing agreements with sub-licensees. E. g., id., Exhibits E, F & G. Although these and the Special Projects agreement, supra, refer to the late 1950’s, an early period in the Presley career, a subsequent merchan- dising agreement between Presley and Parker, the latter doing business as “All Star Shows,” dated May 25, 1963, id., Exhibit H, refers to the production of and distribu- tion of profits from “Merchandising — Special Souvenir Folios and Pictures.” Later signed agreements between Parker and Presley specifically allude to “merchandising agreement[s].” The last of these is dated January 22, 1976. Id., Exhibits I & J. Plaintiff Boxcar Enterprises, Inc. (“Boxcar”) entered into the Presley-Parker relationship as a corporation formed in January 1974. The Court does not have before it the certificate of incorporation, but Col. Parker has testified that he owned 56% of the shares and that Presley and one Tom Diskin, President of Boxcar, each owned 22%. Parker Depos. at 49, lines 21-26. There is, from this point on, some confusion as to which entity — Boxcar or Col. Parker doing business as All Star — handled mer- chandising, but there are numerous exhibits of checks issued from Boxcar to Elvis Presley bearing such nota- tions as “For Royalty Earnings From Sales of Elvis Presley Souvenir Material On Tour June 25th through July 5th, 1976 as per contractual agreement.” Plaintiffs’ Supp. Mem. Exhibit L. (Further checks and royalty statements from Boxcar to the Elvis Presley Estate have also been submitted. Id. Exhibit L.) On August 18, 1977, two days after the entertainer’s death, plaintiff Boxcar entered into an agreement with plaintiff Factors Etc., Inc. (“Factors”) which purported to afford the latter an exclusive license to use the Presley likeness in connection AA-5 with all souvenir merchandise. Complaint, Exhibit A. On August 24, 1977, Vernon Presley, father of the de- ceased and executor of his estate, agreed to a royalty arrangement with Boxcar as “Merchandising Represen- tatives fer the Elvis Presley Estate.” Plaintiffs’ Supp. Mem. Exhibit N. Vernon Presley also wrote te Col. Parker on August 23, 1977 asking Col. Parker to “carry on according to the same terms and conditions as stated in the contractual agreement you had with Elvis dated January 22, 1976.” Id., Exhibit M. DEFENDANT'S POSITION Defendant argues along several lines, the most ger- mane of which are: (1) that plaintiff Boxcar never ac- quired the exclusive right to merchandise the Presley name and image; (2) that even if Boxcar did have such a right in Presley’s lifetime, that right died with the entertainer; (3) that this Court has no jurisdiction of defendant and/or venue is improperly laid here. Al- though the Court would normally dispose of the proce- dural questions of jurisdiction and venue before moving to the substantive issues, in this particular case the latter must be considered first because the procedural issues depend on a clear definition of the applicable substantive rights. THE MERITS The Presley/Parker/Boxcar/Factors Relationship It is hornbook law that where there is ambiguity in a contract the intent of the parties may be ascertained by reference to their subsequent course of conduct. Gordon v. Vincent Youmans, Inc., 358 F.2d 261 (2d Cir. 1965) ; Portsmouth Baseball Corp. v. Frick, 278 F.2d 395 (2d Cir.), cert. denied, 364 U.S. 831, 81 S.Ct. 71, 5 L.Ed.2d 58 (1960) ; 1 Corbin, Contracts § 101 (1964). For more than twenty years, Elvis Presley and Col. Parker had a work- AA-6 ing relationship where the division of labor was appar- ent: one performed, the other promoted. If some of the documents memorializing this activity are less artful than those which some professional counsel can draft, they are no less valid. Defendant points to inconsisten- cies in the statements of Col. Parker and others as to who held the right to “merchandise” the Presley image during his lifetime — Presley himself, Parker, or, eventu- ally, Boxcar. In view of the Parker-Presley agreements, the uncontested allegation that Presley himself was a 22% shareholder of Boxcar and the fact that Boxcar paid royalties to Elvis Presley for souvenir merchandise sold, it seems clear enough, at least for purposes of a prelim- inary injunction, that Presley gave Parker leave to ex- ploit his image through merchandise and that Boxcar was, in recent years, the vehicle through which such merchandising was carried on. Defendant’s allusions to defective links in the chain of title in Boxcar, Defendant’s Mem. in Oppos. 15-18, lose sight of the true facts: these entities involved the same people. With the exception of Diskin they had been doing business together for twenty years.* None of the parties to the Presley-Parker busi- ness relationship appears to have been dissatisfied. Ver- non Presley stated on CBS television on October 3, 1977: “Colonel Parker is an honest man. And I think that’s where the big organization and the big togetherness comes, you know. Once you find out you don’t have to worry about a guy being your manager, what he can do for you, he handles it. You do the show. Everything works fine.” Plaintiffs’ Supp. Mem. at 4. The Court takes note of the fact that these remarks were represented as having been recorded prior to Presley’s death. ? Defendant has no standing to attack the administration of Box- car's financial affairs or to raise inferences of self-dealing; that is the province of the state of incorporation in a quo warranto proceeding. American Co-op Serum Association v. Anchor Serum Co., 153 F.2d 907 (7th Cir.), cert. denied, 329 U.S. 721, 67 S.Ct. 57, 91 L.Ed. 625 (1946). a NT mT TT AA-7 The Right of Publicity By far the most interesting issue in this case is whether Boxcar had anything to transfer to Factors when it en- tered into the August 18, 1977 “exclusive licensing” con- tract. After consulting the case law and certain commen- taries in this field, e. g., Gordon, Right of Property in Name, Likeness, Personality and History, 55 Nw.U.L. Rev. 553 (1960) ; Nimmer, The Right of Publicity, 19 Law & Contemp. Probl. 203 (1954); Note, The Right of Pub- licity — Protection for Public Figures and Celebrities, 42 Brooklyn L.Rev. 527 (1976), I have concluded that it did. It appears that a recognized property right, the “right of publicity,” inhered in and was exercised by Elvis Presley in his lifetime, that it was assignable by him and was so assigned, that it survived his death and was capable of further assignment. The “right of publicity” is not a new concept, but, to the detriment of legal clarity, it has often been discussed only under the rubric “right of privacy.” It is said that the right of privacy embraces “four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each repre- sents an interference with the right of the plaintiff ‘to be let alone.’”” W. Prosser, Torts 804 (4th ed. 1971) (empha- sis added). It is this language which is at the root of the conceptual difficulty in the “right of publicity” area. Dean Prosser recognized that the fourth species of right of privacy tort, i. e., the appropriation of plaintiff’s name or likeness for defendant’s benefit, is distinct from “intru- sion upon the plaintiff’s physical solitude or seclusion,” “public disclosure of private facts,” or “false light in the public eye,” id. at 807, 809, 812, in that “appropriation” is the only one which “involves a use for the defendant’s advantage.” Id. at 814. However, Prosser has failed to discuss the fact that appropriation of plaintiff’s name AA-8 and likeness for defendant’s financial advantage has dif- ferent consequences in a case where the celebrity himself has attempted to commercialize his own name and face. It is evident that courts address intrusions on feelings, reputation and privacy only when an individual has elected not to engage in personal commercialization. By contrast, when a “persona” is in effect a product, and when that product has already been marketed to good advantage, the appropriation by another of that valuable property has more to do with unfair competition than it does with the right to be left alone. See Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481, 490 (3d Cir. 1956) ; Uhlaender v. Henricksen, 316 F.Supp. 1277, 1282 (D.Minn. 1970). This distinction was recognized recently in the United States Supreme Court. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). A television station had broadcast plaintiff’s 15-second “human cannonball” act in its entirety and, in response to plaintiff’s suit for invasion of his “right of publicity,” claimed the first amendment privilege to re- port newsworthy events. The constitutional argument was persuasive to the Ohio Supreme Court, but the United States Supreme Court reversed. In its discussion the Zacchini Court stated: “(T]he State’s interest in permitting a ‘right of publi- city’ is in protecting the proprietary interest of the individual in his act in part to encourage such enter- tainment. As we later note, the State’s in/erest 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. . . . An entertainer such as petitioner usually has no objection to the wide- spread publication of his act so long as he gets the commercial benefit of such publication. * . e AA-9 “