Carson v. Here's Johnny Portable Toilets, Inc.
698 F.2d 831 (1983)
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Rule of Law:
A celebrity's right of publicity is invaded when their identity is appropriated for commercial benefit, even if the appropriation does not use the celebrity's actual name or likeness. A phrase or slogan that is exclusively and uniquely associated with a celebrity's public persona is a protectable aspect of their identity.
Facts:
- John W. Carson was the host and star of 'The Tonight Show,' a popular nightly television program.
- Since 1957, Carson had been introduced on his television shows with the phrase 'Here's Johnny.'
- The phrase 'Here's Johnny' became widely associated with Carson by a substantial segment of the television viewing public.
- Carson licensed the use of the phrase 'Here's Johnny' to commercial ventures, including a chain of restaurants and a line of men's clothing and toiletries.
- In 1976, Earl Braxton founded Here's Johnny Portable Toilets, Inc., a Michigan corporation that rents and sells portable toilets.
- Braxton was aware that 'Here's Johnny' was Carson's introductory slogan and admitted he chose the name because of its association with Carson.
- Braxton's company also used the tagline 'The World's Foremost Commodian' as a pun related to Carson's role as a comedian.
- Carson had never registered the phrase 'Here's Johnny' as a trademark or service mark.
Procedural Posture:
- John W. Carson and Johnny Carson Apparel, Inc. filed suit against Here's Johnny Portable Toilets, Inc. in the U.S. District Court for the Eastern District of Michigan.
- The suit alleged unfair competition, trademark infringement, and invasion of the right of privacy and right of publicity.
- Following a bench trial, the district court (court of first instance) entered a judgment for the defendant, dismissing the complaint.
- The district court concluded there was no likelihood of confusion for the unfair competition claim and that the right of publicity only protected a 'name or likeness,' which the phrase 'Here's Johnny' was not.
- The plaintiffs, John W. Carson et al., as appellants, appealed the district court's judgment to the United States Court of Appeals for the Sixth Circuit.
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Issue:
Does a celebrity's right of publicity extend to protect against the unauthorized commercial use of a phrase that is exclusively associated with their identity, even if it is not their name or likeness?
Opinions:
Majority - Judge Bailey Brown
Yes. A celebrity's right of publicity extends to protect against the unauthorized commercial use of a phrase that is exclusively associated with their identity. The court reasoned that the right of publicity protects a celebrity's commercial interest in their identity, and this identity can be appropriated in ways other than using a name or likeness. The court found that the phrase 'Here's Johnny' was so strongly associated with Carson that its commercial use by the appellee was an appropriation of Carson's identity. The court cited precedents such as Motschenbacher (distinctive race car) and Hirsch ('Crazylegs' nickname) to support the idea that identity can be appropriated through symbols other than a name or picture. The appellee's admission that the phrase was chosen specifically because of its link to Carson demonstrated the intent to commercially exploit his identity.
Dissenting - Judge Cornelia G. Kennedy
No. The common law right of publicity should not be extended beyond an individual's name, likeness, achievements, or identifying characteristics to include phrases merely associated with them. The dissent argued that protecting a common phrase like 'Here's Johnny' grants a celebrity a monopoly over words in the public domain, which stifles free expression and enterprise. Judge Kennedy contended that the phrase itself was not a product of Carson's own creative effort; it was a simple introduction said by someone else. The policies underlying the right of publicity—to reward personal creative effort and prevent deception—are not served by this extension. Furthermore, the cases relied upon by the majority were distinguishable because they involved more unique and personal identifiers, such as a distinctive race car or a likeness in a drawing, not a common phrase.
Analysis:
This case significantly expanded the scope of the right of publicity beyond the traditional protections for a person's name and likeness. By holding that a celebrity's 'identity' is the protected interest, the court opened the door for claims based on the appropriation of catchphrases, nicknames, and other unique identifiers. This decision strengthened the ability of public figures to control the commercial use of their persona. However, as the dissent highlights, it also created tension with First Amendment principles and raised questions about the extent to which common words and phrases can be removed from the public domain and monopolized by celebrities.
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