Carson v. Here's Johnny Portable Toilets, Inc.
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 their name or likeness is not used. A phrase or slogan that is exclusively and uniquely associated with a celebrity 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 was introduced on his television shows with the phrase "Here's Johnny."
- A substantial segment of the television-viewing public generally associated the phrase "Here's Johnny" with Carson.
- Carson had authorized the use of the phrase in connection with outside business ventures, including a chain of restaurants and a line of men's clothing.
- Here's Johnny Portable Toilets, Inc., a Michigan corporation, began renting and selling portable toilets under the name "Here's Johnny."
- The founder of Here's Johnny Portable Toilets, Inc. admitted that he was aware of the phrase's association with Carson when he formed the corporation.
- The portable toilet company also used the slogan "The World's Foremost Commodian" to create a pun.
Procedural Posture:
- John W. Carson and Johnny Carson Apparel, Inc. filed a lawsuit against Here's Johnny Portable Toilets, Inc. in the United States District Court for the Eastern District of Michigan.
- The complaint alleged unfair competition, trademark infringement, and invasion of privacy and publicity rights.
- Following a bench trial, the district court (the trial court of first instance) found in favor of the defendant, Here's Johnny Portable Toilets, Inc., and dismissed the appellants' complaint.
- The district court ruled that there was no 'likelihood of confusion' for the unfair competition claim and that the right of publicity extended only to a celebrity's 'name or likeness.'
- John W. Carson and his company (appellants) appealed the district court's judgment to the United States Court of Appeals for the Sixth Circuit.
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Issue:
Does the commercial appropriation of a celebrity's identity, through a well-known introductory slogan, violate the common law right of publicity, even if the celebrity's name or likeness is not used?
Opinions:
Majority - Bailey Brown
Yes, the commercial appropriation of a celebrity's identity through a well-known slogan violates the right of publicity. The right of publicity protects a celebrity's pecuniary interest in the commercial exploitation of their identity, which is not limited to merely their name or likeness. If a celebrity's identity is commercially exploited, their right has been invaded. Here, appellee's founder admitted to selecting the phrase "Here's Johnny" because of its identification with Carson, proving an intentional appropriation of Carson's identity for commercial purposes. Citing cases like Motschenbacher (distinctive race car) and Hirsch (nickname "Crazylegs"), the court reasoned that a celebrity's identity can be appropriated in various ways, and the use of this slogan, which the public undeniably associated with Carson, was a clear appropriation of that identity.
Dissenting - Cornelia G. Kennedy
No, the use of a phrase merely associated with a celebrity does not violate the right of publicity. This right should be limited to an individual’s name, likeness, achievements, identifying characteristics, or actual performances. The phrase "Here’s Johnny" is a common phrase not created by Carson, and its value to the appellee is as a double entendre. Extending the right of publicity to such phrases allows a public figure to remove common words from the public domain, creating a monopoly that conflicts with free enterprise and free expression. The majority's holding is a windfall for Carson, as the phrase is not a product of his own talent or effort, and it creates a chilling effect on commercial innovation.
Analysis:
This case significantly expanded the scope of the right of publicity beyond the traditional protections for a person's name and likeness. It established that a celebrity's 'identity' is the core interest protected, and this identity can be embodied in other forms, such as a signature catchphrase. The decision created a precedent allowing celebrities to control the commercial use of any symbol or phrase that has become uniquely identified with them in the public's mind. This ruling has had a lasting impact, influencing subsequent cases involving sound-alikes, distinctive voices, and other personal attributes as protectable elements of a celebrity's identity.
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