*1 No. 30872. Dec. 1979.] [L.A. GUGLIELMI, Appellant, Plaintiff
JEAN al., et Defendants and PRODUCTIONS SPELLING-GOLDBERG Respondents.
Counsel
Rudin & Perlstein and Vincent H. Chieffo for Plaintiff and Appellant.
Lillick, Charles, Kulzick, McHose & E. Kenneth Lawrence W. Dam and Kathleen Hallberg for Defendants and Respondents.
Selvin & Weiner and Paul P. Selvin as Amici Curiae on behalf of De- fendants and Respondents.
Opinion THE is Appellant allegedlythe of the nephew actor COURT. Valentino, Rudolph who died 1926. the complaint here- According in, respondents exhibited on television a “fictionalized version” life, name, Valentino’s the actor’s depicting likeness and personality without obtaining prior consent of either Valentino or appellant. action,
the present appellant seeks damages relief on the injunctive that theory respondents have Valentino’s misappropriated “right of pub- and that licity,” as appellant Valentino’s heir is the legal present owner of that right. demurrer Respondents’ to the was complaint sustained and, upon amend, refusal to appellant’s was ordered dis- complaint missed. This appeal followed. Pictures, ante,
In Lugosi v. Universal Cal.Rptr. page 323, 603 P.2d we hold publicity protects against name, the unauthorized use of one’s likeness or but that the personality, is not and expires upon descendible the death of the person pro so tected. Lugosi disposition controls the it present case and makes unnecessary discuss further issues raised parties. judgment affirmed. must whether the use of a
BIRD, J., This court decide C. Concurring. in a fictional film exhibited on deceased name and likeness celebrity’s of that infringement person’s an actionable television constitutes be maintained. It is action cannot appellant’s clear *3 Therefore, his complaint. court dismissed properly the trial
I also Rudolpho that alleges Guglielmi, his complaint, appellant Valentino, was a his uncle. Valentino Rudolph paternal known as was substantial picture actor who created world-renowned silent motion his motion identity through picture perfor- commercial value in his had a protectible Valentino mances. contends that Appellant name, of his likeness and interest in the commercial uses proprietary he this that inherited Appellant alleges personality. will, Valentino’s death 1926. following
under Valentino’s net- 23, 1975, exhibited on the television November respondents On Inc., a film entitled Companies, owned American Broadcasting work A that Romantic Fiction. alleges Valentino: Appellant Legend of of the life of Rudolph film to represent portion purports “[s]aid name, of Rudolph likeness and personality Valentino and employs However, that while the charac- principal asserts appellant Valentino.” Valentino, fiction the life as the film is “a work of about ter is identified first romantic of an Italian actor who became Hollywood’s and loves Hence, the film is a at the of his fame.” height screen star and who died life.” Rudolph Appellant alleges Valentino’s “fictionalized version Valen- truthfully portray knew that the film did not that respondents life, without Valentino’s or the film was made tino’s and that also used respondents contends that Appellant consent. appellant’s the film “to name, in advertising likeness and personality Valentino’s with conjunction exhibited in sponsorship solicit and to sell commercial for the exhibition of solicit viewers exhibition of said film and to said film.” in the identity Valentino’s
Appellant by incorporating argues advertisements, able to derive great- “were respondents film and related than more viewers and sponsors film by attracting er income from their This un- had not been used. if Valentino’s name would have ...” they knew was not which respondents of fiction” authorized use a “work misap- constituted a life allegedly of Valentino’s an accurate portrayal propriation of Valentino’s For this publicity.1 allegedly tortious conduct, appellant seeks relief.2 damages injunctive
Respondents demurred to appellant’s complaint, it asserting failed to state facts sufficient to constitute a cause of action. The trial court However, sustained the with demurrer leave to amend. the court offered to sustain the demurrer without leave to amend and dismiss the complaint if appellant wished to the court’s challenge ruling. Appellant elected to on stand complaint unamended and his complaint was dismissed. This appeal followed.
II In the reviewing of a sufficiency following a trial court’s complaint demurrer, of a sustaining the in general the allegations complaint are (Gill assumed to be true. v. (1952) Curtis Publishing Co. 38 Cal.2d 273, 275 P.2d 630]; Hendrickson v. Newspapers, [239 California (1975) 59, 48 Cal.App.3d If the Cal.Rptr. 429].) so allegations [121 action, construed state cause of any then a trial court commits error when it sustains a and demurrer dismisses the complaint.3 of gravamen appellant’s complaint is that respondents used name, Valentino’s film likeness and in a personality fictionalized which hearing, essence, 1In his petition for appellant summarized his claim: “In Petitioner alleges which, ‘product,’ that defendants photoplay, have created a a fictionalized into name, likeness, for gain, they their own appropriated the and identity of Rudolph Valentino in order product commercially to make their viable and to ensure a ‘sale’ of product.” their 2Specifically, appellant prayed permanent injunction restraining for a respondents false, untrue, “commercially exhibiting any from ... fictionalized fabricated film portion which purports depict a of the life of Rudolph Valentino which em and/or name, likeness, Valentino,” bodies the use of the using reputation and of Rudolph and “from name, reputation Rudolph the likeness or any pur of Valentino in for the manner film, poses advertising any product, of or services or for the purposes of solicitation of ” film, advertising product, commercial for or services .... description I, 3The respondents’ of and conduct state of mind in set forth section ante, appellant’s was drawn from and complaint subsequent in submissions this action. therein, sufficiency judged While the of complaint allegations must be on the this court appellant’s subsequent consider admissions in determining submissions in (Zumbrun University factual basis of his contentions. v. Southern of California 1, 499, 25 Cal.App.3d Cal.Rptr. Hospelhorn 51 A.L.R.3d v. Newhoff (1941) (1940) Cal.App.2d Superior 43 16 Cal.2d 679-680 P.2d Cf. Browne v. Court 276]; Clyne Clyne (1964) 598-599 P.2d 131 A.L.R. 597, 598, Cal.App.2d Cal.Rptr. fn. appel- on thereby infringed life. They
did not his accurately portray seeks Appellant in lant’s inherited interest Valentino’s the un- enriched by were respondents unjustly amounts recovery for damages and use of Valentino’s publicity authorized fictional that respondents’ its value. No claim was made diminishing Valentino or appellant.4 either work defamed or invaded privacy if condi- of action two Therefore, states a cause appellant’s complaint in had a (1) Rudolph are satisfied: Valentino tions name, which a right likeness and personality, commercial uses his conduct constitut- heirs, his respondents’ could be transferred to on right. an impermissible infringement ed Pictures, ante, page In conclusions in Universal light my Lugosi (dis. plain I believe that Cal.Rptr. opn.), P.2d 425] I examined the Lugosi, tiff’s satisfies the first condition. complaint commercial of his nature of an individual’s interest uses controlling in name likeness. A has a substantial economic prominent person name This is entitled to terest the commercial use of his and likeness. be an indi under common law and should inheritable protection *5 individual’s death. protected vidual’s heirs and for 50 after the years star who con expended Valentino was a world-renowned silent screen he the siderable effort in his career. developing Unquestionably enjoyed law Since the afforded the common protection right publicity.5 by in his interest complaint appellant that inherited Valentino’s alleges that appropriation right name and likeness and Valentino’s death, the initial ele within 50 of Valentino’s publicity years occurred ments of a cause of action have been adequately alleged. consti-
It therefore determined whether conduct respondents’ must be that right resolving tuted an of Valentino’s infringement is of concern. the context and nature of use preeminent question, were used in a work of fiction Valentino’s name and likeness allegedly in respondents’ likeness was used allegation appellant’s name or 4There was no that rights, his personal such as recognizes any injury to Appellant film. Valentino’s (See, e.g., Hendrickson after his death. privacy, to would not be actionable Inc., Cal.App.3d supra, 48 Newspapers, California light disposi publicity his name and likeness. In had a 5Valentino to would attach I whether appeal, of this need not decide tion however, note, pro not interesting appellant has “personality.” It Valentino’s easily definition for this discern—any applied find it difficult vided—and I amorphous term.
865 broadcast on characterized film as “a Appellant respondents’ television.
work of fiction Italian actor who became about life loves of an first screen star and who died at the of his height romantic Hollywood’s fame.” Valentino was identified as that character.6 (Jo-
Film is a medium for communication of ideas.” “significant 495, 1098, (1952) Inc. v. 343 501 seph Burstyn, Wilson U.S. L.Ed. [96 1105, television, 72 S.Ct. Whether exhibited in theaters or on 777].) a film is a medium which is protected guarantees (U. Const., Amends.; Const., free expression. S. 1st and 14th Cal. art. 2; Wilson,
I,
Inc. v.
Court (Freeman) Cal.3d Cal.Rptr. P.2d 393]), and will forfeit that if protection it falls within only “narrowly limited classes” of cases (1942) v. New (Chaplinsky Hampshire 1031, 1035, U.S. L.Ed. 766]). S.Ct.
Appellant contends that the Valentino film is not entitled to the cloak of constitutional protection because Valen- respondents incorporated tino’s name and fiction, likeness in: work of for financial gain, (3) knowing that such film Valentino’s The criti- falsely portrayed life.
cal issue is factors, whether of these presence individually collectively, sufficiently this outweighs any protection expression would *6 otherwise under enjoy the United States and California Constitutions. film, emphasizing fictional nature of the appellant’s argument
reveals a fundamental misconception of the nature of the constitutional 6Such statements wholly establish that this is not a case in which the use is unrelated if, to the individual. A example, respondents pub different result follow for had Rudolph lished recipes Valentino’s Cookbook and neither the nor the menus described in (Cf. Esquire the book were in Rudolph fashion related to Valentino. Grant v. 876; (S.D.N.Y. 1973) (1953) F.Supp. Publishing 367 Gill v. Hearst 40 Cal.2d Co. 224 (3d 1951) P.2d Leverton v. Pub. Curtis Co. Cir. 192 F.2d film, allegedly While Valentino’s particular name was used to advertise this this is celebrity’s promote not a case in which a name is used to or endorse a collateral com- mercial product product is otherwise associated with a or service in an (See, e.g., Digest (1972) advertisement. v. Reader’s Inc. Cal.App.3d Stilson Assn. 28 Cal.Rptr. 581]; Reynolds (9th 270 Company Motschenbacher v. R. J. Tobacco [104 1974) Bernbach, 821; Doyle, (1977) Cir. 498 F.2d App. Lombardo v. Dane & Inc. 661].) Div.2d 620 N.Y.S.2d “The of free
guarantees
expression.
expres-
of free
sion ...
is
intended to remove
restraints
governmental
and
designed
discussion,
the decision as to what
from the arena of public
putting
us,
views
the hands of each of
in the hope
shall be voiced
into
largely
citi-
capable
that use of such freedom will
a more
ultimately produce
no other approach
and more
and
the belief that
zenry
perfect polity
choice upon
would
with the
of individual
comport
premise
dignity
(Cohen
(1971)
which our
rests.”
U.S.
political system
California
284, 293,
L.Ed.2d
91 S.Ct.
I,
California Con-
article
section
The First Amendment and
of ideas” and to
an uninhibited
preserve
marketplace
stitution serve “to
‘“uninhibited,
debate on
wide-open’
limit the
robust and
repel efforts to
FCC,
(Red
395 U.S.
Co.
public
Broadcasting
issues.”
Lion
Welch,
(1974) 418
L.Ed.2d at
Gertz v. Robert
p. 389];
390 [23
789, 805,
These
are
rights
Free
the discussion of
speech encompasses
members of
society
to enable the
formation
needed or appropriate
(Thornhill v. Alabama
period.”
with the
of their
cope
exigencies
1093, 1102,
736].) Participation
60 S.Ct.
310 U.S.
L.Ed.
current
of more than
requires knowledge
process
self-government
to establish
The information required
events and
candidates.
political
is essential.
to order political priorities
basic values and
*7
pages
California,
supra,
pages
v.
Our courts have often observed that entertainment is entitled to the same constitutional as the of ideas.9 That conclu protection exposition First, sion rests on two line between the propositions. informing “[t]he and the is too elusive for the of the basic entertaining protection right. is familiar with instances
Everyone fiction. propaganda through amusement, (Winters What is one man’s teaches another doctrine.” v. (1948) 507, 840, 847,
New York 333 U.S. L.Ed. 68 S.Ct. Second, entertainment, as a mode of is entitled to self-expression, constitutional protection of its contribution to the market irrespective of ideas. “For is an place expression integral part development ideas, of mental exploration and of the affirmation of self. The power realize his as a human potentiality point at this and must being begins extend at least this far if the whole nature of man is not to be thwarted. belief, Hence suppression of and is an opinion expression affront to
[¶] man, (Emerson, dignity of man’s essential nature.” negation 879.) 72 Yale L.J. at supra, p.
It is clear that works of fiction are protected in the constitutionally same manner as treatises and news stories.10 fic- political topical Using vehicle, values, habits, customs, laws, tion as a commentaries on our prejudices, future are What justice, heritage frequently expressed. 8It noteworthy that the provides “[e]very person California Constitution
freely speak,
I,
write
publish
subjects.....”
(Art.
his or her sentiments on all
confirms,
2.) As
only thoughts
Webster
encompasses
§
“sentiments”
not
but the atten
(Webster’s
dant
(2d
1941)
emotions.
New
Internat. Dict.
ed.
9See, e.g.,
Scripps-Howard
562,
Zacchini v.
Broadcasting Co.
433 U.S.
965, Association,
2849];
Digest
97 S.Ct.
Briscoe v. Reader’s
529, 535,
4 Cal.3d
Cal.Rptr.
footnote 6
1];
483 P.2d
57 A.L.R.3d
Jordan,
242;
Co.,
supra,
Weaver v.
page
64 Cal.2d at
Gill
Publishing
v. Hearst
page
may communicate or understand when factually reported be may satire, if poignant powerful offered in science fiction or par- Indeed, able. Dickens and Dostoevski well have written more may trenchant and comprehensive on their commentaries times than any factual recitation could ever Such authors are no yield. less entitled to their express views than the crier town with the news daily or the phi- losopher with his discourse on the nature of Even the author justice. who creates tales for distracting amusement is entitled to constitutional (See Publications, protection. (2d Berlin v. 1964) E.C. Cir. 329 541, 545; Hill, F.2d 76 Colum.L.Rev. p.
Thus, no distinction be drawn in this context between fictional and factual election of the accounts of Valentino’s life. Respondents’ former as the mode for their views does not diminish the constitutional for protection afforded If are to be held liable their speech. respondents a more basis must be established. expression, persuasive Next, likeness were appellant contends that Valentino’s name and used because increased the value or of the film. It is they marketability that such argued protection motivation diminishes otherwise three dis- encompass mandated. This contention appears First, tinct bases of the film was and broadcast for produced liability. Second, have themselves without us- profit. respondents expressed could such unauthorized use Valentino’s name and likeness. To ing permit prominence. allows them to benefit from Valentino’s unjustifiably Third, the use of Valentino’s name and likeness in a account fictional poses a threat to the value of Valentino’s unique Amendment
The first
can be
dismissed. The First
argument
readily
Whether the activity
not limited to those who
without
publish
charge.
it does not
picture production,
involves
or motion
newspaper publication
profit.
lose its constitutional
because it is undertaken for
protection
(Time,
456, 472,
Inc. v.
385 U.S.
Hill
Wilson,
Inc. v.
343 U.S. at
Burstyn,
S.Ct.
Joseph
from
respondents sought
profit
L.Ed. at
The fact that
p. 1106].)
Century-Fox
App.Div.2d
University
Notre Dame v. Twentieth
508],
The of subtle. prong argument second appellant’s likeness in the film was un- is that the of Valentino’s name and it use in the film incorporated solely Valentino’s was necessary, identity this were to determine to increase the film’s If used analysis value. to protection, grave
whether an entitled expression be not to determine would result. Courts would required merely harm between the and expression whether there is some minimal relationship (see the author to the ante), fn. but celebrity compel justify the a the the court of neces- Only upon satisfying use of celebrity’s identity. of the into a particular publication sity weaving celebrity’s identity fade. Such a course would would shadow of and liability censorship free the man- inevitably speech—limiting only chill the exercise of not as well. ner and form of but ideas expression interchange events, used in fic- and are regularly people Contemporary symbols to more or persuasively, writers be able tional works.11 Fiction into the tale persons by weaving more themselves accurately, express author should The is theirs. No events familiar to their readers. choice di- or characters wholly worlds creating be forced into mythological public derived from publicity vorced from reality. caricature, parody not a shield ward off does confer prominence Rather, comment. Surely, range invites creative prominence satire. if persons reduced prominent free would be expression meaningfully topics were forbidden for imagina-
in the and recent present past of authors of tions fiction.12 Valentino was are illustrative.
The facts case present strikingly of the cultural history His life career are part a star. Hollywood Valentino became film suggests, era. As title of respondents’ an 1969) 141. Cf. Leo Publishing (4th Co. Cir. 413 F.2d 11See v. Curtis Middlebrooks book, (fictional play and motion I11.2d N. E.2d pold v. Levin 434 [259 250] (1977) 58 case); Wojtowicz Press v. Delacorte picture Leopold-Loeb based on N.Y.S.2d 4pp.Div.2d N.Y.S.2d affirmed 43 N.Y.2d incident.) real (fictional Dog Day based on picture N.E.2d motion 129] Afternoon Trudeau, “Doonesbury,” example, Garry strip 12For creator the satiric cartoon figures. regularly dialogue It can involving prominent political fictionalizes events and pursue successfully an seriously not be such notable could maintained one satirized infringement for an on on use. action his based such *10 “legend,” symbol a of the romantic screen idol lover. His and lingering an persona apt is or topic for or poetry song, biography fiction.13 Whether respondents’ work a appraisal constitutes serious of Valen- tino’s stature or mere a fantasy judgment viewer, is left to the reader or not the courts.14
The third strand in is appellant’s argument that the of incorporation person’s a in a fictional a prominent work threat to the identity poses found value of his of not in truthful accounts. Yet truth- publicity accounts, ones, ful no less upon than fictional trade may publicity value in Valentino’s diminish value. The thereby its author identity of an unauthorized truthful be and seek publication may inspired by, to from, the or profit public’s interest Valentino’s career legend. truthful account sate the desire for “contact” with may public’s Valen- tino, other making any plan exploitation profitless for or revelation a truthful, report, venture. the false no less Conversely, than may stimulate interest and infuse value in the previously insignificant great value in a A is publicity fictional account as celebrity’s identity. likely to laud as to It denigrate. either or diminish the value of may augment Therefore, a assertion that fictional celebrity’s any accounts a threat to the not found in pose unique Treece, Commercial (See Ex- truthful is not reports simply justified.15 Names, Likenesses, ploitation Personal Histories 637, 660.) Texas L.Rev. appellant claims film is
Finally,
that
not entitled to constitutional
with
protection
respondents
because
acted
or reckless disre-
“knowledge
gard
However,
of their broadcast
falsity”
Valentino.
concerning
that,
issue,
in addition
13Amicus curiae informs the court
to the film
at least five
concerning
biographies
pictures
produced.
and three motion
Valentino
been
have
merit,
they
only
14“Whether
are
whether
have value
as
creations
[works
fiction]
education,
opinion,
pose ques
and no value
information
entertainment
whatever as
or
require
tions
us to
those elusive lines
inconsistent with
which would
stake out
...”
“It
that
protections
expression.
accorded
is fundamental
courts
not
clumsiness,
expression by passing judgment
sensitivity
muffle
coarseness;
on its skill or
its
or
enough
on
It
the work
a
pains
pleases.
nor
whether it
that
is
form of
‘deserving
expression
of substantial
as entertainment and as a form of
freedom—both
literary
(University
social and
criticism’
....”
Notre Dame
Twentieth
[citation]
California,
Century-Fox,
p.
That standard reflects the
Court’s
Supreme
recognition
value,16 such
false statements of fact have no constitutional
defamatory
statements are inevitable in the
debate on
issues.
continuing
public
matters,”
Accordingly,
provide adequate protection
“speech
*11
the court held that even false
of fact concerning public fig-
statements
ures and officials are not actionable unless
are
with
published
they
(Gertz
of their
or reckless
for the
v.
knowledge
falsity
truth.
disregard
Inc.,
Welch,
Robert
supra,
pp. pp. 706-707].) L.Ed.2d at No such constitutional exists in this area between truthful dichotomy and fictional accounts. have constitutional stature They equal and each is as to fulfill likely the the constitutional objectives underlying guaran- ante, (See, Moreover, tees of free expression. 865-868.) in cases, defamation the concern is with lies as defamatory masquerading contrast, truth. In the author who denotes his as work fiction proclaims his license literary and indifference to “the There facts.” is no pretense. fiction, definition, All eschews an by to be faithful to histori- obligation cal truth. fiction writer knows his Every creation is some sense Therefore, “false.” That is the nature the art. where is the fiction medium—as alleged by appellant this case and as evident in the A Romantic Fiction—it title, film’s is the meaningless charge author “knew” his work was false.
Clearly, appellant’s basis for film from distinguishing respondents’ works, fictional, other whether factual expressive unpersuasive. or Appellant has not which established framework any analytic logically Hence, differentiates film from an ac- respondents’ expressions. other tion for of the can be maintained if infringement publicity only interests at issue the value of free ex- proprietary clearly outweigh pression in this context.
While few courts have addressed the of the question parameters activities, in the context of their re- expressive publicity Welch, Inc., supra, page page 16Gertz Robert 418 U.S. at L.Ed.2d at Sullivan, page But see New York Times Co. v. 376 U.S. at footnote 805]. page L.Ed.2d at 706]. has been Whether sponse publication consistent. involved was fictional,18 factual and has biographical17 publicity not been held to the value of free other outweigh expression. conclu- Any sion would allow and commentaries reports on and thoughts conduct of to be un- public prominent persons subject censorship der the guise dissipation value of a preventing Moreover, person’s the creation of historical identity. novels other inspired works actual events and would be off limits people to the fictional author. An avenue of would be important self-expression blocked and the of ideas would be diminished. As one com- marketplace observed, mentator “it is difficult to more recently imagine anything unsuitable, Amendment, or more vulnerable under the First than com- under a for the use made of pulsory payment, theory appropriation, (fn. (Hill, omitted.) individual’s in a work of identity [an fiction].” 76 Colum.L.Rev. at *12 A cause of action for the appropriation of Valentino’s of public- ity through the use of his name and likeness in film respondents’ may not be maintained. The trial court sustained the demurrer and properly dismissed the complaint.19
A similar result
is compelled for the use of Valentino’s name and
in
likeness
advertisements for the film. That use was
an
merely
adjunct
to the exhibition of the film. It was not
that the advertisements
alleged
17See,
9,
e.g.,
Dunlap,
(N.Y.Sup.Ct.
1979)
Frosch v. Grossett &
Inc.
4
Jan.
Med.L.
Etc.,
2307;
Rep.
(S.D.N.Y. 1977)
Factors
Inc. v.
F.Supp.
Creative Card Co.
444
279,284;
House,
Enterprises,
(1968)
Rosemont
Inc. v. Random
Inc.
stature of
is of no moment that
respondents’ undertaking,
have
It
be
tisements
increased the
film. would
profitability
exhibit
film but
respondents
effectively preclude
to allow
illogical
advance
their lawful
Since
enterprise.
discussion or
promotion
was
use of
name and
in the film
not an action
Valentino’s
likeness
able
use of his
infringement
of Valentino’s
publicity,
(Cf.
in
for the film is
not actionable.
identity
similarly
advertisements
Allen,
Levin,
256;
259 N.E.2d at
Koussevitzky
Leopold
affd.
Towne & Heath
In Hicks v. Casablanca supra, Christie, writer extraordi of Agatha mystery the late assignees the motion naire, the of book and suit to distribution brought enjoin incident a account of an fictionalized picture which Agatha, presented an on infringement Christie’s life. The action was based Agatha which trans had been Christie’s common law right publicity, Mrs. the issue 429-430.) works in (Id., Although at ferred to plaintiffs. recognized the court to be and not biographical, were found fictional not accorded protections movie and book enjoyed that the the (Id., 430-431.) Finding at pp. commercial merchandise. general 874 interests the court held “the does
speech paramount, right . not attach .. where a fictionalized account of an event in the life of a movie, is and in
public
depicted in a novel or a
such novel or
figure
movie it is
fictitious.”
to the
the events so
are
public
depicted
evident
(I
d.,
433.)
at
Defendants’ motions to
p.
dismiss
complaint
(Accord
were
Rosemont
granted.
Inc. v. McGraw-Hill
Enterprises,
Book,
tionally protected
ap
of a cause of action for
address the viability
did not
Lugosi simply
under these circumstances.
publicity
propriation
Co.,
Finally,
Broadcasting
Zacchini v. Scripps-Howard
562,
be accorded
In
protection.
U.S.
does not
require
appellant
Zacchini,
act” in a human can
filmed
“entire
respondent
petitioner’s
(Id.,
nonball
on television.
performance
performance
and broadcast his
law,
at
L.Ed.2d at
Under state
had the
p.
p. 969].)
petitioner
[53
to the
to control its
“right
value of his
performance,”
(Id.,
commercial
at
L.Ed.2d at
display
exploitation.
p.
p.
[53
970].) The
went “to the heart
Supreme Court found that
broadcast
of petitioner’s
to earn a
as an entertainer” and
a
ability
living
posed
“substantial
threat to the economic value of [petitioner’s] performance.”
(Id., at
575-576
L.Ed.2d at
In
of the nature
pp.
pp. 975-977].)
light
[53
interest,
of this
the court held that a suit for
based on
damages
respon
dent’s broadcast of
“entire act” was not
petitioner’s
precluded by
(Id.,
First Amendment.
at
574-575
L.Ed.2d at
pp.
pp. 975-976[].)22
case,
In the present
did not
film a
respondents
surreptitiously
perfor
mance
Valentino and
in a
incorporate that film
motion picture. They
did not
“an entire act for which the
appropriate
performer ordinarily
(Id.,
his
gets paid,” thereby
to earn
at
undercutting
ability
living.
p.
Rather,
L.Ed.2d at
a fictional
p. 975].)
respondents produced
film about
of Valentino.
conduct was thus
legend
Respondents’
much more akin to
upon
reporting
facts of Zac
commenting
chini’s
which the
Court
as
performance,
Supreme
regarded
entirely
(Id.,
Further,
at
L.Ed.2d at
permissible.
pp.
p. 975].)
stake,
balancing the interests at
Court observed that re
Supreme
had not
made
spondents
merely
some use of Zacchini’s name and
likeness, but had
Zacchini’s entire act. The court
usurped
suggested
(Id.,
that the latter is entitled
at
protection.
fn. 10
greater
Comment,
A
Cannonball’s
Human
Privacy, Appropriation, and the First Amendment:
595-596,
Note,
Right
Landing
B.Y.U.L.Rev.
Rough
Rather
Brooklyn L.Rev.
(1976) 42
Publicity—Protection
Figures
Public
and Celebrities
For
665-668.)
Treece,
pp.
supra,
L.Ed.2d (Id., at publicity. the contours of its prescribe authority 578-579 In this I do no more than ac p. 978].) opinion, this Court’s invitation to define one cept Supreme boundary state’s common law Manuel, J.,
Tobriner, J., concurred. NEWMAN, opinion. Further, J. I concur in the court's I concur forth principles that sets opinion in the discussion in the Chief Justice’s individ- the invasion of an whether an action based on for determining in the face of a claim be maintained ual’s publicity may While the exercise of freedom of expression. use is an challenged of this case to a under the facts Chief Justice those applies principles that the principles it seems clear suit the heir of a prominent person, a suit brought by person. would similarly apply