concurring in part and dissenting in part. Although I concur in paragraphs one and two of the syllabus, of the majority opinion, for the reasons that follow, I must dissent from paragraph three of the syllabus and from the judgment.
The majority opinion properly rejects the theories of conversion and common law copyright adopted, sua sponte, by the Court of Appeals as rationale supporting its decision, and, • additionally, properly characterizes the instant cause of action as involving the “right of publicity.” In ■this regard, the majority opinion states:
“It is this right, a right of exclusive control over the publicity .given, to. his performances, which the plaintiff ■seeks to protect. For a performer, this right is a valuable part of the benefit which may be attained by his talents and .efforts, and we think that , this right is entitled .to legal ■protection * * ' ■ 1 . '
• In applying the above stated principle. to the facts of this cause, the majority opinion proclaims that “* * * [w]e may reasonably assume that the plaintiff’s performance of his act-in a county fair was not such an abandonment of his right of publicity that anyone might, over his stated objection and without license or privilege, film the performance and broadcast the film to millions of viewers in the area,”
Yet; the majority opinion concludes that Scripps-Howard Broadcasting Company may do just that, by holding, as a matter of law, that a privilege obtains in favor of the media when reporting matters of legitimate public inter*237est” such that the instant cause of action must he defeated.
For two reasons, I strenuously disagree with the result reached by the majority in this case.
First, the majority’s reliance upon Time, Inc., v. Hill (1967), 385 U. S. 374, and New York Times Co. v. Sullivan (1964), 376 U. S. 254, in support of its decision is questionable, at best, and is clearly erroneous, at worst. A significant body of case law has developed subsequent to those decisions that must be recognized in the event the principles elucidated in New York Times Co. v. Sullivan, supra, and Time, Inc., v. Hill, supra, are applied herein. Examination of the relevant decisions is, therefore, appropriate.
In New York Times Co. v. Sullivan, supra, the Supreme Court of the United States held that before a newspaper may be held liable in damages to a “public official” in a defamation action, it must be established that the publication giving rise to the cause of action was made “with actual malice.” The court defined “actual malice” as requiring a plaintiff to prove that the defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, supra (376 U. S., at page 280). In Curtis Publishing Co. v. Butts (1967), 388 U. S. 130, the court extended application of the New York Times “actual malice” standard to “public figures.” In Rosenbloom v. Metromedia, Inc. (1971), 403 U. S. 29, a plurality of the court further extended application of the New York Times standard to actions in defamation brought by private persons whenever the statements allegedly defamatory concerned matters of general or public interest.
However, in Gertz v. Robert Welch, Inc. (1974), 418 U. S. 323, the court repudiated the plurality opinion in Rosenbloom, stating, at page 346, that “extension of the New York Times test proposed by the Rosenbloom plurality Avould abridge * * * [a] legitimate state interest to a degree that we find unacceptable.”
In Certz, the court held, at page 347, that “* # # so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of lia*238bility for a publisher or broadcaster of defamatory falsehood injurious to a private-individual. This approach provides a more equitable boundary between the competing concerns involved here. It. recognizes the strength of the legitimate state interest in compensating private individuals'for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. * * *” (Footnote omitted.)
“*'* * We endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. But this countervailing state interest extends no further than compensation for actual injury. For reasons stated below, we hold that the states may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. * * *” Id., at page 348.
The Gerts court also established guidelines to be followed by trial courts in considering whether a particular person is a “public figure.”' In this regard, the court, at page 345, stated:
“* * * For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they aré deemed public figures for all purposes.' More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. ’ ’
Recently, in Time, Inc., v. Firestone (1976), U. S. 47 L. Ed. 2d 154, the Supreme Court of the United States reaffirmed its holding in Gerts v. Robert Welch, Inc., supra.
Examination of the foregoing cases discloses that the Supreme Court of the United States has determined not to apply the strict test enunciated in New York Times Co. v. Sullivan, supra (376 U. S. 254), to defamation actions instituted against the media by private individuals.
*239The law expressed in Time, Inc., v. Hill, supra (385 U. S. 374), must be viewed in light of Gertz v. Robert Welch, Inc., supra, and Time, Inc., v. Firestone, supra.
In Time, Inc., v. Hill, the court applied the New York Times standard to a “false-light” invasion of privacy, action commenced by a private individual. In the next “false-light” case, however, Cantrell v. Forest City Pub. Co. (1974), 419 U. S. 245, the court, although applying the New York Times standard because the trial court had, without objection, instructed the jury upon it with the result that a verdict was obtained against the defendant-publisher, intimated that the New York Times standard need not constitutionally be applied in false-light cases brought by private individuals, citing Gertz v. Robert Welch, Inc., supra.
The implication of the foregoing analysis as applied to the facts of the instant cause is obvious. There is essentially little difference in denominating a cause of action as “false-light invasion of privacy” as opposed to “defamation,” because the legal theory utilized to decide both will be the same. In my view, the decision in Gertz v. Robert Welch, Inc., will eventually be held to apply to both types of actions. Accordingly, although neither the false-light nor the defamation appellation can accurately be attached to the instant cause of action, for the reason that no falsity is alleged by the plaintiff herein, it appears to me that the principles announced in Gertz v. Robert Welch, Inc., supra, effectively supersede the rationale upon which Time, Inc., v. Hill, supra, was based, and, therefore reliance by the majority upon Time, Inc., v. Hill is misplaced.
Consistent with the above, in my view the majority opinion herein falls into, serious error by applying the stricter standard of New York Times Co. v. Sullivan, supra, to the facts of this cause. Additionally, the majority opinion conceivably errs by characterizing the standard to be used, in the first instance, as “whether the matters reported •were of public interest,” as that standard was rejected in Gertz v. Robert Welch, Inc., supra, at least -in instances where the plaintiff is neither a “public official” nor a “public figure.” • ; i ".v
*240I have reviewed the foregoing authorities only because of the reliance placed upon Time, Inc., v. Hill, supra, and New York Times Co. v. Sullivan, supra, by the majority. Although the issues presented in false-light invasion of privacy and defamation actions are similar to those presented in the instant, “right of publicity” action insofar as First Amendment rights and privileges of newspaper and broadcast media are concerned, the issues presented herein are distinctly different in all other respects, and require separate analysis.
This is a case of first impression in this state. It basically involves a further review of the principles first enunciated in this state in Housh v. Peth (1956), 165 Ohio St. 35, wherein the court established that an action may properly be commenced to protect or vindicate a right of privacy.
In the instant cause of action, the plaintiff, Mr. Hugo Zaechini, sought to vindicate the alleged unlawful appropriation of his professional property by the defendant, Scripps-Howard Broadcasting Company.
The facts of this case are simple, and basically uncontradicted. In his complaint, plaintiff alleges “that he is engaged in the entertainment business and that the act which he performs is an act which was invented by his father and has been performed only by his family for the last fifty years.” The act to which he refers is colloquially known as the “human cannonball act.” In this act, Zaechini is shot out of a cannon into a net approximately 200 feet distant. The entire performance occupies 15 seconds of time.
In August and September, 1972, Zaechini performed his act at the Geauga County Fair, in Burton, Ohio. On or about August 30,1972, Zaechini requested a free-lance news reporter employed by the defendant not to film his act. However, on September 1, 1972, this reporter did film Zacchini’s entire act upon the express order of his superior, the producer of defendant’s Eyewitness News Program. The entire act as filmed was broadcast that night on defendant’s 11:00 P. M. news program.
*241Two fundamental questions are presented herein: (1) ‘Whether the above rendition of facts is sufficient to state .a cause of action; and (2) if so, whether summary judgment was appropriately granted to the defendant.
The majority opinion concludes that plaintiff stated .a cause of action. I agree.
As the majority opinion accurately indicates, plaintiff’s cause of action in this case rests upon a claimed infringement of his “right of publicity.” This right ■springs, as illustrated in the majority opinion, from the :first form of invasion of privacy described by Dean Prosser in his Handbook of the Law of Torts (4 Ed.), at page 804, as appropriation of the plaintiff’s name or likeness. However, this “right of publicity” differs from the other three forms of invasion of privacy characterized by Dean Prosper in that it, unlike the others, generally involves a pe■euniary loss, an interference with property. That is be■cause, as in the instant cause, the identity appropriated lias an actual or potential commercial value. See, generally, Gordon, Right of Property in Name, Likeness, Personality and History, 55 Nw. U. L. Rev. 553 (1960).
It is now largely beyond dispute that an individual, •such as Zacchini, involved in the entertainment or competi'tive athletic business, has a valuable property right in his or her name, photograph, image and performance, and that this right may be sold. See, e. g., Motschenbacher v. R. J. Reynolds Tobacco Co. (C. A. 9, 1974), 498 F. 2d 821; Cepeda v. Swift & Co. (C. A. 8, 1969), 415 F. 2d 1205; Price v. Hal Roach Studios, Inc. (S. D. N. Y. 1975), 400 F. Supp. 836; Uhlaender v. Henricksen (D. Minn. 1970), 316 F. Supp. 1277; Sharman v. C. Schmidt & Sons, Inc. (E. D. Pa. 1963), 216 F. Supp. 401. See, also, Ettore v. Philco Television Broadcasting Corp. (C. A. 3, 1956), 229 F. 2d 481; Haelan Laboratories v. Topps Chewing Gum (C. A. 2, 1953), 202 F. 2d 866, certiorari denied, 346 U. S. 816; Grant v. Esquire. Inc. (S. D. N. Y. 1973), 367 F. Supp. 876; Canessa v. J. I. Kislak, Inc. (1967), 97 N. J. Super. 327, 235 A. 2d 62; Hogan v. A. S. Barnes & Co. (C. P. Pa. 1957), 114 U. S. P. Q. 314. The fundamental concept involved in the *242“right of publicity” cause of action is the theory that “a person has the right to enjoy the fruits of his own industry free from unjustified interference.” Uhlaender v. Henrickson, supra (316 F. Supp., at page 1282). (Citations omitted.)
Although the majority opinion recognizes the existence of this “right of publicity,” it concludes that summary judgment was appropriately granted under the facts of this cause. I disagree.
Civ. R. 56 (C) provides, in pertinent part:
“* * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most- strongly in his favor. ”-
Civ. R. 56 (C) specifically provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it. appears from the. evidence that reasonable minds can. come to but one conclusion, and. viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
As stated recently in Houk v. Ross (1973), 34 Ohio St. 2d 77, 81: “Civ. R. 56 is virtually identical to the federal rule, FRCP 56, after which if was patterned.” The general view of the. various federal courts- supports, the con*243.struction of Civ, R. 56(C) rendered herein; See Ecology Center of Louisiana, Inc., v. Coleman (C. A. 5, 1975), 515 F. 2d 860; Tee-Pak, Inc., v. St. Regis Paper Co. (C. A. 6, 1974), 491 F. 2d 1193; Caplan v. Roberts (C. A. 9, 1974), 506 F. 2d 1039; Bloomgarden v. Coyer (C. A. D. C. 1973), 479 F. 2d 201. See, generally, 6 Moore’s Federal Practice 56-463 (2 Ed.), Paragraph 5615(3). See, also, Joseph v. Portsmouth (1975), 44 Ohio St. 2d 155.
In my view, summary judgment was inappropriately granted by the Court of Common Pleas herein both because there exist genuine issues of material fact and because: the defendant is not entitled to judgment as a matter of law.
The following issues of material fact, while not exhaustive, are illustrative of questions not yet resolved in the instant cause:
1. To the extent that Gertz v. Robert Welch, Inc., supra (418 U. S. 323), is here relevant, whether the plaintiff is a “public figure” as defined in Gertzl
2. Whether the plaintiff had contracted to a third party, for remuneration, the exclusive right to exhibit his ■performance?
3. Whether the plaintiff’s contract of employment with ihe proprietor of the eounty fair included receipt of a per•centage of the paid admissions ?
4. Whether the broadcast of his entire act by the defendant, in total disregard of the plaintiff’s express request to the contrary, constituted an invasion of the plaintiff’s “right of publicity” as established by the majority -opinion?
5. Whether the defendant’s broadcast of plaintiff’s -entire performance was influenced by its commercial inferests (i. e., ratings) ?
In conclusion, since the plaintiff has stated a valid -cause of action, since genuine issues of material facts remain unresolved, and since the majority opinion misapplies ■the relevant law and, therefore, in paragraph three of the •syllabus, incorrectly develops the appropriate standard *244by which the present appeal should be measured, I must respectfully dissent from paragraph three of the syllabus, and from the judgment rendered herein.
I would affirm the judgment of the Court of Appeals, albeit for different reasons, and remand the cause to the Court of Common Pleas for trial. The effect of such a disposition would not impermissibly expose this defendant to unjustifiable litigation. It would only afford this plaintiff his day in court. Assuming, arguendo, that the plaintiff could discharge his burden of proving that the defendant’s action economically damaged him, at that time, and in the normal course of law, the defendant could present its defense of the charge. By following this accepted procedure, the Court of Common Pleas, in the first instance, could develop the appropriate legal standard by which the unique circumstances of this cause should be tested.
In my view, a majority of this court has chosen to address and decide the novel and delicate issues of fact and law herein presented upon a woefully inadequate record. It has often been said that “good facts make bad law.” However, in this case, a more appropriate cliche is “no facts make no law.”