The Court notes, at the outset, that plaintiff's reliance on
Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977), is misplaced. In Zacchini, the issue was whether a television station could be held liable in tort for broadcasting the “entire” act of a commercial entertainer. The improper action, in that case, was the station's infringement of the performer's “right of publicity.” The controversy revolved around the station's use of film which it legitimately obtained in the course of routine newsgathering. Although Zacchini had objected, at first, to having his event filmed, he did not renew his objection when the film crew appeared one day later. Further, there was no admission charge for his particular performance: his was only one of a number of the events at a county fair. More important, he had not negotiated any form of a broadcasting rights contract with anyone. Thus, there was nothing extraordinary about the station's newsgathering, except for the fact that they had not filmed a naturally occurring news event. Rather, they filmed a staged production by a professional entertainer. They were found liable in tort largely, if not completely, because the broadcast of the “entire” act diminished the commercial value of the performance.
433 U.S. at 570, 97 S.Ct. at 2854. In briefing that case for the United States Supreme Court, the parties, and the amicus curiae National Association of Broadcasters,
unqualifiedly agreed that Zacchini could have contracted to protect the commercial value of his act. Thus, Zacchini has no application in this case.
The issue before the Court is not whether the plaintiff may be restricted from communicating information it has already obtained; our concern is whether the plaintiff may have special access to that information. This is a critical distinction. See
Houchins v. KQED, Inc., 438 U.S. 1, 9, 98 S.Ct. 2588, 2593, 57 L.Ed.2d 553 (1978).