## Facts

- John W. Carson is a nationally known entertainer and longtime host of NBC’s *The Tonight Show*.
- Since at least 1962, Carson was introduced on television with the phrase “Here’s Johnny,” which became widely associated with him by a substantial segment of the public.
- Carson and his licensing company commercially licensed “Here’s Johnny” for restaurants and consumer products, including apparel labels and a line of men’s toiletries.
- The phrase “Here’s Johnny” was not registered as a trademark or service mark.
- A Michigan company began renting and selling portable toilets using the trade name “Here’s Johnny Portable Toilets, Inc.” and the slogan “The World’s Foremost Commodian.”
- The company’s founder admitted he knew “Here’s Johnny” was associated with Carson and selected it as a wordplay intended to benefit from that association.
- Carson and his licensing company sued for injunctive relief and monetary recovery, asserting theories including unfair competition and a state-law privacy/publicity claim.

## Issues

1. Whether a celebrity’s state-law right of publicity extends beyond name and likeness to other indicia that identify the celebrity, including a distinctive phrase closely associated with the celebrity.
2. Whether the defendant’s use of “Here’s Johnny” for portable toilets supported unfair competition or trademark-type relief based on likely consumer confusion.

## Decision

- The Sixth Circuit reversed in part.
- It held that the defendant violated Carson’s right of publicity by appropriating his identity through commercial use of the phrase “Here’s Johnny,” despite not using Carson’s name or image.
- The court treated trademark registration and likely consumer confusion as not controlling for the publicity claim.
- The court left undisturbed the district court’s rejection of trademark/unfair competition relief based on lack of likely confusion.
- The case was remanded for further proceedings consistent with recognizing liability on the right-of-publicity theory.

## Legal Principles

- The right of publicity protects the commercial value of a celebrity’s identity and may be infringed without use of the celebrity’s literal name or likeness.
- A defendant may be liable for misappropriation when it uses a distinctive identifier that, in the public mind, points to the celebrity and is selected to capitalize on the celebrity’s reputation or commercial magnetism.
- Publicity liability does not require proof of trademark-type likely confusion about source or sponsorship.
- Trademark registration is not a prerequisite to a state-law publicity claim.

## Conclusion

The Sixth Circuit recognized that state-law publicity protection can reach a signature phrase that functions as an identifier of a celebrity, and it found liability where a business intentionally used that phrase in commerce to exploit the celebrity’s identity, even absent name-or-image use or proof of consumer confusion.


Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983)