Johnny Carson v. Here's Johnny Portable Toilets ... - Right Of Publicity

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The fact that the name, "Crazylegs," used byJohnson, was a nickname rather than Hirsch'sactual name does not preclude a cause of action.All that is required is that the name clearly identifythe wronged person. In the instant case, it is notdisputed at this juncture of the *836 case that thenickname identified the plaintiff Hirsch. It isargued that there were others who were known bythe same name. This, however, does not vitiatethe existence of a cause of action. It may,however, if sufficient proof were adduced, affectthe quantum of damages should the jury imposeliability or it might preclude liability altogether.Prosser points out "that a stage or other fictitiousname can be so identified with the plaintiff that heis entitled to protection against its use." 49Cal.L.Rev., supra at 404. He writes that it wouldbe absurd to say that Samuel L. Clemens wouldhave a cause of action if that name had been usedin advertising, but he would not have one for theuse of "Mark Twain." If a fictitious name is usedin a context which tends to indicate that the nameis that of the plaintiff, the factual case for identityis strengthened. Prosser, supra at 403.280 N.W.2d at 137.[9] In this case, Earl Braxton, president and ownerof Here's Johnny Portable Toilets, Inc., admittedthat he knew that the phrase "Here's Johnny" hadbeen used for years to introduce Carson.Moreover, in the opening statement in the districtcourt, appellee's counsel stated:Now, we've stipulated in this case that the publictends to associate the words "Johnny Carson", thewords "Here's Johnny" with plaintiff, John Carsonand, Mr. Braxton, in his deposition, admitted thathe knew that and probably absent thatidentification, he would not have chosen it.App. 68. That the "Here's Johnny" name wasselected by Braxton because of its identificationwith Carson was the clear inference from Braxton'stestimony irrespective of such admission in theopening statement.We therefore conclude that, applying the correctlegal standards, appellants are entitled to judgment.The proof showed without question that appelleehad appropriated Carson's identity in connectionwith its corporate name and its product. [FN2]FN2. See also Prosser, HANDBOOK OFTHE LAW OF TORTS, supra, at 805 ("It isthe plaintiff's name as a symbol of hisidentity that is involved here, and not as amere name.").Although this opinion holds only that Carson's rightof publicity was invaded because appelleeintentionally appropriated his identity for commercialexploitation, the dissent, relying on its interpretationof the authorities and relying on policy andconstitutional arguments, would hold that there wasno invasion here. We do not believe that the dissentcan withstand fair analysis.The dissent contends that the authorities hold that theright of publicity is invaded only if there has been anappropriation of the celebrity's "name, likeness,achievements, identifying characteristics or actualperformances." After so conceding that the right is atleast this broad, the dissent then attempts to show thatthe authorities upon which the majority opinion reliesare explainable as involving an appropriation of oneor more of these attributes. The dissent explainsMotschenbacher, supra, where the advertisementused a photograph, slightly altered, of the plaintiff'sracing car, as an "identifying characteristic" case.But the dissent fails to explain why the photographany more identified Motschenbacher than the phrase"Here's Johnny" identifies appellant Carson. Thedissent explains Hirsch, supra, by pointing out thatthere the use of the appellation "Crazylegs" by thedefendant was in a "context" that suggested areference to Hirsch and that therefore Hirsch wasidentified by such use. Here, the dissent states, thereis no evidence of the use of "Here's Johnny" in such asuggestive "context." Putting aside the fact thatappellee also used the phrase "The World's ForemostCommodian," we fail to see why "context" evidenceis necessary where appellee's president admitted thatit adopted the name "Here's Johnny" because itidentified appellant Carson. We do not understandappellee to even contend that it did not successfullyaccomplish its intended purpose of appropriating hisidentity. The dissent explains Ali, supra, by pointingout that in that case the magazine used a drawing that"strongly suggests" it to be a representation *837 ofthe famous fighter, but it is also true that the court putemphasis on the fact that the subject of the drawingwas referred to as "The Greatest," which "furtherimplied" that the individual was Ali. 447 F.Supp. at726-727.It should be obvious from the majority opinion andthe dissent that a celebrity's identity may beappropriated in various ways. It is our view that,under the existing authorities, a celebrity's legal rightof publicity is invaded whenever his identity is
intentionally appropriated for commercial purposes.We simply disagree that the authorities limit the rightof publicity as contended by the dissent. [FN3] It isnot fatal to appellant's claim that appellee did not usehis "name." Indeed, there would have been noviolation of his right of publicity even if appellee hadused his name, such as "J. William Carson PortableToilet" or the "John William Carson Portable Toilet"or the "J.W. Carson Portable Toilet." The reason isthat, though literally using appellant's "name," theappellee would not have appropriated Carson'sidentity as a celebrity. Here there was anappropriation of Carson's identity without using his"name."FN3. Although Michigan law is applicableand the author of the dissent is anexperienced and able Michigan lawyer andjudge, we do not understand the dissent tocontend that the law of that state inparticular proscribes the holding of themajority opinion.With respect to the dissent's general policyarguments, it seems to us that the policies there setout would more likely be vindicated by the majorityview than by the dissent's view. Certainly appellantCarson's achievement has made him a celebritywhich means that his identity has a pecuniary valuewhich the right of publicity should vindicate.Vindication of the right will tend to encourageachievement in Carson's chosen field. Vindicationof the right will also tend to prevent unjustenrichment by persons such as appellee who seekcommercially to exploit the identity of celebritieswithout their consent. [FN4]FN4. Appellee did not brief and make thepolicy and constitutional arguments reliedupon in the dissent. Instead, the appelleeconfined its argument to the straightforwardproposition that the right of publicity islimited to appropriation of the celebrity's"name or likeness."The dissent also suggests that recognition of the rightof publicity here would somehow run afoul of federalmonopoly policies and first amendmentproscriptions. If, as the dissent seems to concede,such policies and proscriptions are not violated by thevindication of the right of publicity where thecelebrity's "name, likeness, achievements, identifyingcharacteristics or actual performances" have beenappropriated for commercial purposes, we cannot seewhy the policies and proscriptions would be violatedwhere, as here, the celebrity's identity has admittedlybeen appropriated for commercial exploitation by theuse of the phrase "Here's Johnny Portable Toilets."The judgment of the district court is vacated and thecase remanded for further proceedings consistentwith this opinion.CORNELIA G. KENNEDY, Circuit Judge,dissenting.I respectfully dissent from that part of the majority'sopinion which holds that appellee's use of the phrase"Here's Johnny" violates appellant Johnny Carson'scommon law right of publicity. While I agree thatan individual's identity may be impermissiblyexploited, I do not believe that the common law rightof publicity may be extended beyond an individual'sname, likeness, achievements, identifyingcharacteristics or actual performances, to includephrases or other things which are merely associatedwith the individual, as is the phrase "Here's Johnny."The majority's extension of the right of publicity toinclude phrases or other things which are merelyassociated with the individual permits a popularentertainer or public figure, by associating himself orherself with a common phrase, to remove thosewords from the public domain.The phrase "Here's Johnny" is merely associatedwith Johnny Carson, the host and star of "TheTonight Show" broadcast by the NationalBroadcasting Company. Since 1962, the openingformat of "The Tonight *838 Show," after the thememusic is played, is to introduce Johnny Carson withthe phrase "Here's Johnny." The words are spokenby an announcer, generally Ed McMahon, in a drawnout and distinctive manner. Immediately after thephrase "Here's Johnny" is spoken, Johnny Carsonappears to begin the program. [FN1] This method ofintroduction was first used by Johnny Carson in 1957when he hosted a daily television show for theAmerican Broadcasting Company. This case is nottransformed into a "name" [FN2] case simplybecause the diminutive form of John W. Carson'sgiven name and the first name of his full stage name,Johnny Carson, appears in it. The first name is socommon, in light of the millions of persons namedJohn, Johnny or Jonathan that no doubt inhabit thisworld, that, alone, it is meaningless or ambiguous atbest in identifying Johnny Carson, the celebrity. In
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Johnny Carson v. Here's Johnny Portable Toilets ... - Right Of Publicity

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