Carson v. Here's Johnny Portable Toilets, Inc.

United States Court of Appeals for the Sixth Circuit · Property

PropertyRight of PublicityUnfair CompetitionPrivacyright of publicityidentity appropriationcommercial exploitationname or likeness

Facts

Johnny Carson had long been introduced on television with the phrase "Here's Johnny," and the phrase was generally associated with him by a substantial segment of the public. Carson and his related business ventures had authorized outside commercial uses of the phrase, including restaurants, clothing labels, advertising, and men's toiletries. The defendant, Here's Johnny Portable Toilets, Inc., adopted that phrase as its corporate and product name for portable toilets, and its founder admitted he knew of the phrase's association with Carson when he selected it. Defendant used the phrase as a commercial play on Carson's identity in marketing portable toilets.

Issue

Whether the defendant's commercial use of the phrase "Here's Johnny" for portable toilets violated Carson's right of publicity even though defendant did not use Carson's actual name or likeness. Also, whether defendant's use created a likelihood of confusion sufficient to support appellants' unfair competition claim.

Rule

The right of publicity protects a celebrity's pecuniary interest in the commercial exploitation of his identity. That right is invaded whenever a defendant intentionally appropriates the celebrity's identity for commercial purposes, whether or not the defendant uses the celebrity's actual name or likeness; by contrast, unfair competition under the Lanham Act and Michigan common law requires a likelihood of confusion as to sponsorship or approval.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Nashville, singer Lena Vale has for years been introduced at concerts and on television by the phrase "Midnight Lena," which a substantial segment of the public associates with her. A flashlight company in Ohio launches a line of camping lanterns called "Midnight Lena Lights" after its founder admits he picked the name because people would think of the singer, but the packaging contains no photo or legal name.

If Lena sues for violation of her right of publicity under the governing rule, which result is most likely?

Explanation. The majority rule is that the right of publicity protects a celebrity's pecuniary interest in the commercial exploitation of identity, not merely name or picture. If a phrase is generally associated with the celebrity and the defendant intentionally selected it to evoke that identity for commercial gain, the right is invaded even without literal use of the celebrity's name or likeness. Likely confusion is relevant to unfair competition, not required for the publicity claim. (Derived from Carson v. Here's Johnny Portable Toilets, Inc. (n.d.).)