APU Legal Studies Original

Intellectual Property Protection and Making News Reports

Case law has taught us that the media has fairly broad latitude in reporting the news, but that latitude is not unlimited when it comes to intellectual property protection. And when certain lines are crossed, journalists and news networks will be held to fairly intense scrutiny.

In America, we value the public service that journalists and news networks provide us in reporting important information to our communities. From politics to world affairs to sports and entertainment, reporters keep the public apprised of what is happening in the world, both at home and abroad.

But what happens when the interests of journalists in reporting the news collide with other protected societal interests? How do we decide what takes priority and when?

Related: Entertainment Industry Regulations and Park v. Deftones

Zacchini v. Scripps-Howard Broadcasting Company: Testing the Limits of Intellectual Property Protection

One case that tested the limits of intellectual property protection was Zacchini v. Scripps-Howard Broadcasting Company, according to Cornell Law School. Hugo Zacchini was a circus performer in the mid-twentieth century. He performed a “human cannonball” act where he was shot out of a cannon and into a safety net, and Zacchini’s entire act lasted approximately 15 seconds.

In 1972, Zacchini was hired to perform his act at the Geauga County Fair in Burton, Ohio. There was an admission fee for the public to attend the fair, but there was no separate admission fee for fair attendees to watch Zacchini’s performance.

On August 30, as he was preparing for his act, Zacchini noticed that a news reporter from Scripps-Howard Broadcasting was present in the audience with a video camera. Zacchini approached the journalist and asked him not to film the performance.

At the time, the journalist complied. But later that night, the journalist’s supervisor directed him to return to the fair the next day and record Zacchini’s act, so he did.

The 15-second video of the performance was aired in full on the 11 o’clock evening news that night, along with positive commentary. The intent was to share information with the viewing public about the Geauga County Fair and Zacchini’s performance.

Zacchini sued Howard-Scripps for appropriation and common law copyright. He argued that in airing his entire act on the network’s broadcast, the network had robbed Zacchini of his right of publicity over his intellectual property (i.e., his performance), as well as the economic value that his intellectual property yielded him in his professional work.

Howard-Scripps defended the suit on the grounds that the First Amendment protected their activities in reporting on newsworthy events in the public interest – even if that reporting impinged on the persons and property on which they reported.

Zacchini sued the news network in Ohio state court. Interestingly, this case was one of the relatively rare legal cases that ended up being heard by four different courts, culminating in certiorari review (when a higher court reviews the decision of a lower court) by the Supreme Court of the United States (SCOTUS). But the road to the U.S. Supreme Court was an interesting one.

Related: Tasini v. New York Times: Clarifying Copyright Protections

The Ohio State Courts’ Decisions

The Ohio state court trial level granted summary judgment for Howard-Scripps, agreeing that the Constitution protected the network’s actions. Zacchini appealed and the Ohio Court of Appeals reversed the trial court’s decision. The argument was that while the First Amendment granted to the press certain rights around free speech and reporting, it did not protect them from misappropriating the intellectual property of private citizens without compensation.

Scripps-Howard appealed to the Ohio Supreme Court, and there the decision of the Appeals Court was reversed again. The highest court in Ohio argued that journalists are protected in sharing intellectual property for the purposes of reporting the news, unless either a) those journalists appropriate the intellectual property for some non-privileged, private use, or b) the intent of the appropriation was to injure the person in question.

The US Supreme Court Reviews the Zacchini Case

Because the claims and defenses in Zacchini concerned issues of federal law (i.e., the Constitution), Zacchini was able to appeal the Ohio Supreme Court’s decision to the U.S. Supreme Court, which ultimately granted review.

The U.S. Supreme Court justices reviewed the conflicting decisions from all of the lower courts that had preceded them in the case. Ultimately, with a razor-thin margin of 5-4, the majority ruled in favor of Zacchini.

intellectual property protection Supreme Court 2 Deel
The U.S. Supreme Court ultimately ruled in favor of Zacchini.

Their reasoning was more or less similar to that of the Ohio Court of Appeals in their earlier ruling. But the U.S. Supreme Court justices went into more detail in their opinion.

First, they distinguished what Zacchini was and was not asking the Court for in terms of relief. He wasn’t asking for privacy, he wasn’t asking to be left alone and he didn’t want to prevent his human cannonball act from being shared with viewers. After all, he was a performer because he wanted people to see the act.

Instead, what Zacchini was asking for was fair compensation for the value of his performance. Zacchini argued that when Howard-Scripps aired his entire act on television, it likely discouraged large numbers of potential attendees from paying to see his act in person.

In other words, people who saw his act on the news probably wouldn’t have bothered to go see him live. As a result, this appropriation of his act took money out of his pocket.

Right now, you might be thinking, “But wait! Zacchini wasn’t charging a separate fee for fair attendees to view his show, so what financial interest did he have in the live attendance for his performance?” In other words, what did he actually have to lose when the network aired his show on television?

It is true that Zacchini didn’t charge an extra fee for fair attendees to watch his performance. However, it can be assumed that the fair’s managers hired Zacchini and paid him good money to perform because they believed that Zacchini’s show would attract more attendees to the fair.

So if the attendance draw from Zacchini’s show was undercut by the news broadcast of his performance, it’s certainly reasonable to suspect that the fair might not want to invite him back again in the future. And if they did invite him back, it would likely be with a lower compensation offer than the money Zacchini previously made.

So there can be no doubt that Zacchini had a significant financial interest in the value of his act. Consequently, it is reasonable to think that the television airing of his performance would have had a negative effect on his earnings.

But journalists also have an interest in reporting the news for public benefit. And the two competing interests are irreconcilable, right? In other words, the news can’t report on Zacchini’s act without compromising his financial interests, can they?

The Supreme Court actually argued that these two aims are not mutually exclusive. Instead, they proposed that Scripps-Howard could have still reported on the fair and on Zacchini’s act without risking substantial damage to fair attendance or Zacchini’s intellectual property. They could have accomplished this objective through making better choices on what they aired.

The Justices in the majority proposed that the news could have simply aired a headshot of Zacchini along with a verbal and/or written description of his performance without showing the act itself. Or if the network was insistent on showing footage of the act for ratings purposes, they could have shown only a very short snippet of the beginning of Zacchini’s act. For instance, the network could have aired the part where Zacchini was fired into the air, but not the part where he landed in a safety net.

In addition to adequately reporting on the main attraction of the show, this tactic would have left TV viewers in suspense about how Zacchini’s act ended. Perhaps it might have even encouraged attendance, rather than stifling it.

But by showing the act in its entirety, the news network left nothing to the imagination. They allowed no mystery to remain about Zacchini’s performance – whether he survived the cannon or how he did it. For that reason, the majority ruled that Scripps-Howard exceeded the scope of protections under the First Amendment in this instance.

The Dissenting Opinion in the Zacchini Case

It’s worth noting that three of the U.S. Supreme Court Justices who did not agree with the majority opinion joined in a dissent that was noted in the case record. In their comments, the dissenting justices noted strong concerns about the slippery slope that could be created where journalists are slapped with liability for reporting the news.

In this case, Scripps-Howard was found to have erred because it aired the entirety of Zacchini’s act. But the justices for the dissent emphasized that the entire act was only 15 seconds long.

With most events covered by the news – movies, plays, concerts and sports matches, for instance – the events last for hours. As a result, there is usually nothing spoiled by showing a 15-second clip of news coverage.

But when an entire performance is only 15 seconds, how fine a line must journalists actually walk in order to provide adequate coverage in the news while still respecting intellectual property? For example, would 10 seconds out of Zacchini’s 15-second act have been OK to show on the air? What about 11 or 12?

The concern from the dissenting justices was predicated on the fact that these lines are anything but clear. In the absence of unambiguous rules about publication and First Amendment protections, some journalists might be less inclined to report news for fear of personal liability.

Clearly, that kind of apprehension from the media would be contrary to public interest. After all, we want reporters to feel free to share information for the betterment of society.

Zacchini v. Scripps-Howard Shows That Reporters Should Be Mindful of Intellectual Property Damage

Nonetheless, the outcome in the Zacchini case tells us that reporters and news networks can still report on events that are of public interest. However, they must also be mindful of the effects their publications might have on others’ rights and livelihoods.

Naturally, there is no “one size fits all” rule here and the appropriate conduct of journalists depends on the circumstances of each unique situation. But when news and events may be covered in more than one way, reporters may have an obligation to use the least invasive or compromising means of reporting to honor their duties as journalists without damaging the intellectual property of private citizens.

Gary Deel

Dr. Gary Deel is a Faculty Member with the Wallace E. Boston School of Business. He holds an A.S. and a B.S. in Space Studies, a B.S. in Psychology, a J.D. in Law, and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for the University, the University of Central Florida, Colorado State University and others.

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