American University Law Review
As lawsuits over the right of publicity proliferate among athletes and other celebrities, there is renewed interest, by litigants and judges alike, in the one decision by the U.S. Supreme Court that addresses a tort action arising from a "publicity" related claim, Zacchini v. Scripps-Howard Broadcasting Co. Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court justices' available papers shows that the Court did not view the case as presenting the type of claim that has become prevalent today.
The Zacchini case involved a human cannonball act in which a television station filmed and broadcast the entire fifteen-second performance of Hugo Zacchini being shot from a cannon to a landing pad. The Supreme Court rejected the television station's First Amendment defense that it had a right to broadcast the act on a newscast because the performance itself constituted a matter of public interest.
For the Supreme Court, the internal papers indicate the case was about the right of a performer/producer to control the display of his entire act. The Court was not focused on the more contemporary claim that athletes, celebrities, and others have a right to control the use by anyone else, especially for commercial purposes, of their name or their visual image. Nor did the Court's ruling address the First Amendment issue raised in contemporary cases when a name or likeness is used in a creative work or other public communication.
Wermiel, Stephen and Levine, Lee, "The Court and the Cannonball: An Inside Look" (2016). Articles in Law Reviews & Other Academic Journals. 1348.