Hugo Zacchini, widely credited as being the first human cannonball, took his act to the highest court of the land. Zacchini v. Scripps-Howard Broadcasting is the first and only case decided by the United States Supreme Court that deals with the right of publicity.
The story begins with Hugo’s father, Ildebrando Zacchini. Ildebrando had a circus (the Zacchini Family Circus) that toured the world. Lidebrand also invented a compressed air cannon that could be used to launch humans. Hugo and his father originated the human cannonball act that was performed publicly in Cairo, Egypt.
In 1928, John Ringling saw the act and brought Hugo to the United States to perform with Ringling Brothers and Barnum & Bailey Circus. Hugo toured with Ringling Brothers for many years until he started his own circus.
Hugo continued to perfect his human cannonball act, and in August of 1972, he was engaged to perform at the Geauga County Fair in Burton, Ohio. A freelance reporter for Scripps-Howard Broadcasting attended the fair. Hugo noticed that the reporter was carrying a small camera and asked him not to film the performance. The reporter complied with Hugo’s request that day – but returned the next day and videotaped the entire act. The film clip lasted 15 seconds and was shown on the 11 o’clock news that night.
Hugo sued Scripps-Howard. The case wound its way through the Ohio courts and landed in the United States Supreme Court in 1977.
Scripps-Howard argued that its filming of Hugo’s human cannonball act was protected by the First Amendment under the guise of reporting the news. In response, Hugo pointed out that he did contend that the performance could not be reported by the press as a newsworthy item. Instead, Hugo argued that the filming of his entire act was an appropriation of his property.
The Supreme Court agreed, stating that the broadcast of the “entire act poses a substantial threat to the economic value of that performance” and the “effect of a public broadcast of the performance is similar to preventing [Hugo] from charging an admission fee.” The value of Hugo’s act depended on the public’s desire to see a human cannonball act, so showing the entire act on TV has the capacity to reduce the number of people who would pay to see his act.
The Court recognized Hugo’s right of publicity and reasoned that “the protection provides an economic incentive for [Hugo] to make the investment required to produce a performance of interest to the public.”
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.