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

Brief Fact Summary.

John Carson, the host of the Tonight Show, sued Here’s Johnny Portable Toilets, Inc. (Company) for invasion of publicity rights when the company advertised with a phrase associated with Carson’s likeness.

Synopsis of Rule of Law.

A celebrity’s right to publicity extends to a phrase, even if the plaintiff’s name and likeness is not used, where the defendant sought to benefit from the plaintiff’s identity.

Facts.

Here’s Johnny Portable Toilets, Inc. (Company) used the phrase “Here’s Johnny” to advertise their toilets because the phrase was popularly associated with John Carson (Carson) of the Tonight Show. The founder of Here’s Johnny Portable Toilets, Inc. admitted to knowing that the public associated the phrase “Here’s Johnny” with Carson and that had Carson not been a public figure, Here’s Johnny Portable Toilets, Inc. would not have been named in association with Carson. Carson filed suit against Here’s Johnny Portable Toilets, Inc. claiming that the company violated his right to publicity and the district court dismissed the complaint.

Issue.

Whether a celebrity’s right to publicity extends to a phrase, even if the plaintiff’s name and likeness is not used?

Held.

Yes. Vacated and remanded.

Dissent.

(Kennedy, J). The right of publicity should not extend beyond a celebrity’s name or likeness. Because the phrase “Here’s Johnny” is a phrase used by Carson, rather than an appropriation of his name, there mere association of “Here’s Johnny” with Carson should preclude Carson from recovery.

Discussion.

The four types of right to privacy include: (1) interfering with someone’s solitude; (2) publicly disclosing private facts; (3) publicizing information that place’s a person in false light; (4) and the right of publicity. The right of publicity protects the appropriation of a celebrity’s identity whether or not the celebrity’s name or identity is used. The owner of Here’s Johnny Portable Toilets, Inc. admitted that the phrase “Here’s Johnny” was publicly associated with Carson and that the phrase was used due to Carson’s acclamation. Here’s Johnny Portable Toilets, Inc. appropriated Carson’s identity, entitling Carson to judgment.