The Whole Act: Zacchini and the Supreme Court's Only Right-of-Publicity Ruling

Almost half a century later, it remains the only time the Supreme Court of the United States has decided a right-of-publicity case—and it arose from fifteen seconds of a man being fired out of a cannon. In Zacchini v. Scripps-Howard Broadcasting Co., No. 76-577 (U.S., decided June 28, 1977), the Court held that the First and Fourteenth Amendments do not immunize the news media from civil liability when they broadcast a performer’s entire act without consent. Justice Byron White wrote for a five-Justice majority. The opinion is narrow, fact-bound, and frequently overread, but it anchors every modern fight over whether expressive works can override a person’s right to control the commercial use of their identity.

At a glance

• Case: Hugo Zacchini v. Scripps-Howard Broadcasting Co., No. 76-577 (U.S. June 28, 1977).
• Court: Supreme Court of the United States; majority opinion by Justice White, joined by Chief Justice Burger and Justices Stewart, Blackmun, and Rehnquist (5-4).
• Posture: On certiorari to the Supreme Court of Ohio, which had recognized a right of publicity under Ohio law but held the broadcast privileged under the First Amendment.
• Holding: The First Amendment does not bar a State from imposing liability when a broadcaster appropriates and airs a performer’s entire act; the Constitution does not require the press to do so without compensating the performer.
• Significance: The sole Supreme Court right-of-publicity decision; it grounds the right in economic-incentive theory analogous to patent and copyright and cabins the press privilege at the “entire act.”

Hugo Zacchini performed a “human cannonball” act at the Geauga County Fair in Burton, Ohio: shot from a cannon into a net roughly 200 feet away, the whole thing lasting about fifteen seconds. A freelance reporter for Scripps-Howard’s television station recorded the act despite Zacchini’s request not to film it, and the station aired the entire fifteen-second performance on its evening news with favorable commentary. Zacchini sued, alleging unlawful appropriation of his professional property. The Ohio Supreme Court recognized his right of publicity but held the telecast constitutionally protected. The Supreme Court reversed.

A right grounded in incentives, not dignity

What makes Zacchini doctrinally distinctive is the theory Justice White chose. He did not rest the right of publicity on privacy or on a celebrity’s dignitary interest in being left alone. He grounded it squarely in economics. The State’s interest, the Court explained, is “closely analogous to the goals of patent and copyright law”—protecting “the proprietary interest of the individual in his act in part to encourage such entertainment.” The point is to secure “the economic incentive for him to make the investment required to produce a performance of interest to the public.”

That framing matters far beyond circus acts. By analogizing publicity to intellectual property rather than to defamation or false-light privacy, the Court signaled that the right protects labor and investment—the value a performer creates—rather than reputation or emotional repose. It is why later courts treat misappropriation of identity as a quasi-property tort and why damages often turn on the commercial value extracted, not on hurt feelings.

The Court was also careful to distinguish its own privacy precedent. In Time, Inc. v. Hill, the Court had extended strong First Amendment protection to media reporting on matters of public interest in a false-light case. Zacchini set that aside, reasoning that Zacchini did not complain that the broadcast was false or that it intruded on his privacy; he complained that it took the commercial value of his performance. “The broadcast of a film of petitioner’s entire act poses a substantial threat to the economic value of that performance,” White wrote, because “if the public can see the act free on television, it will be less willing to pay to see it at the fair."

"Entire act” as the constitutional fulcrum

The holding lives or dies on two words: entire act. The Court repeatedly emphasized that Scripps-Howard had not merely reported that Zacchini performed, described his act, or shown a brief clip; it had broadcast “the entire act”—the whole product Zacchini sold. That is, in the Court’s view, “the strongest case for a ‘right of publicity.’” The privilege the press enjoys to report newsworthy events did not extend to appropriating and airing the complete performance, which functioned as a substitute for the thing itself.

This is the line that controls how Zacchini is read today. The decision does not hold that newsworthiness is irrelevant, that the press may be liable for showing excerpts, or that any unauthorized use of identity in expressive media is actionable. It holds something much smaller: a State may, consistent with the First Amendment, give a performer a remedy when a broadcaster takes the whole of a discrete, marketable act. The Court expressly noted that requiring compensation does not prevent the broadcast; it leaves the press free to air the performance and merely shifts the cost of the act’s commercial value back to the party that took it.

Justice Powell dissented, joined by Justices Brennan and Marshall, warning that the “entire act” test would chill routine news coverage and that liability should turn on whether the broadcaster used the footage for legitimate news purposes rather than to “appropriate the economic value.” Justice Stevens dissented separately, urging that the case be remanded because the Ohio court’s state-law basis was unclear. Their concerns about line-drawing have proved durable: the boundary between a privileged excerpt and an unprivileged “entire act” has rarely been tested at the Court since.

Why a fifty-year-old circus case still governs

Because Zacchini is the only Supreme Court word on the subject, it does heavy lifting in disputes its facts never contemplated—video games, biographical films, deepfakes, AI voice clones. Lower courts and commentators extract from it two competing lessons. The first is that the right of publicity is constitutionally legitimate: the First Amendment is not an absolute shield against publicity liability, and States may protect the commercial value of identity. The second is that the case is profoundly limited—an “entire act,” economic-substitution holding that says little about partial uses, transformative works, or speech on matters of public concern.

Modern First Amendment defenses to publicity claims—the transformative-use test of Comedy III v. Saderup, the Rogers test for expressive titles and content, and the public-interest analysis applied to films like The Hurt Locker—all operate in the space Zacchini deliberately left open. The Court protected a complete, appropriated performance. It did not decide what happens when a defendant takes a likeness, a name, or a story and builds something new around it. That silence is the doctrine’s most important feature.

Open questions

• What counts as an “entire act” today? Streaming, clips, and remixes blur the line between reporting on a performance and substituting for it; the Court never defined the threshold.
• Does the incentive rationale reach non-performers? Zacchini sold a discrete act he had invested in producing; whether the same economic logic justifies publicity rights for ordinary individuals or incidental likenesses is unresolved.
• How does it interact with newsworthiness? Zacchini preserved a press privilege for reporting but denied it for wholesale appropriation, leaving the middle ground to lower courts.

Implications

• The right of publicity is constitutional. States may impose publicity liability without violating the First Amendment, at least for appropriation of a complete performance.
• Theory drives scope. Because the right rests on economic incentive, it functions like intellectual property—protecting investment and value rather than reputation or privacy.
• Newsworthiness is not a blanket defense. Reporting that an event occurred differs constitutionally from broadcasting the whole marketable act.
• The holding is narrow. Zacchini resolves the “entire act” case and almost nothing else; transformative and expressive-work defenses fill the rest of the field.
• Compensation, not suppression. The remedy contemplated is payment for value taken, framing publicity disputes as questions of who bears the cost rather than whether speech may occur.

Frequently asked questions

Is Zacchini the only Supreme Court right-of-publicity case? Yes. Decided in 1977, it remains the only time the Supreme Court has addressed the right of publicity, which is why it features in nearly every modern First Amendment publicity dispute despite its narrow facts.

Did the Court say the press can never use a performer’s image? No. The Court protected a State’s power to impose liability for broadcasting a performer’s entire act. It preserved the press’s freedom to report on performances and did not address excerpts, descriptions, or transformative uses.

Why did the Court compare the right of publicity to copyright? Justice White grounded the right in economic incentives—rewarding the investment required to produce a valuable performance—an interest he called closely analogous to the goals of patent and copyright law, rather than in privacy or reputation.

Authorities and sources

• Supreme Court opinion (full text): Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), via Cornell LII
• Case page and syllabus: Justia U.S. Supreme Court Center
• Background and analysis: The First Amendment Encyclopedia, MTSU
• Encyclopedic overview: Wikipedia: Zacchini v. Scripps-Howard Broadcasting Co.