Right of Publicity

"Here's Johnny" on a Portable Toilet: Carson and the Catchphrase as Identity

The Sixth Circuit held that a celebrity's signature catchphrase can be appropriated even when his name and likeness are never used.

February 10, 2025
A row of portable toilets at an outdoor event
Carson v. Here's Johnny Portable Toilets extended the right of publicity to a phrase the public links to a single performer. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

In Carson v. Here’s Johnny Portable Toilets, Inc., No. 80-1720 (6th Cir.), decided February 1, 1983, the United States Court of Appeals for the Sixth Circuit took one of the strangest fact patterns in the publicity canon and used it to settle a serious doctrinal point: a celebrity’s identity can be appropriated through a phrase the public associates with him, even when the defendant never touches his name, face, or voice. Johnny Carson hosted NBC’s Tonight Show, where for decades he was introduced each night by Ed McMahon’s drawn-out announcement, “Here’s Johnny.” A Michigan entrepreneur, Earl Braxton, founded a company that rented and sold portable toilets under the name “Here’s Johnny Portable Toilets,” coupling the phrase with the slogan “The World’s Foremost Commodian” — a pun trading openly on the connection to the comedian. Carson sued. The district court ruled for the defendant on every theory. The Sixth Circuit (Brown, J., joined on the publicity holding; Kennedy, J., dissenting in part) reversed in part, holding that the right of publicity protects a celebrity’s identity broadly and that Braxton had invaded Carson’s right by appropriating the phrase that identified him.

At a glance

  • Case: Carson v. Here’s Johnny Portable Toilets, Inc., No. 80-1720 (6th Cir.), decided February 1, 1983; reported at 698 F.2d 831.
  • Posture: Appeal from a judgment for the defendant in the Eastern District of Michigan after the district court rejected all of Carson’s claims.
  • Four theories pleaded: federal unfair competition under the Lanham Act; common-law unfair competition; invasion of the right of privacy; and invasion of the right of publicity.
  • Holding on publicity: Reversed. The district court’s conception of the right was too narrow; the right protects against appropriation of a celebrity’s identity, and a phrase associated with the celebrity can do that even absent name or likeness.
  • Holding on the other claims: Affirmed. Carson did not establish a likelihood of confusion sufficient for the Lanham Act and common-law unfair-competition theories, and his privacy theory failed.
  • Dissent: Judge Cornelia Kennedy warned that grounding liability in mere identification, untethered from the celebrity’s own commercial use of the phrase, would sweep too broadly.

A right that protects the person, not the label

The case turned on how widely the right of publicity reaches. Michigan, applying the law the panel believed its courts would adopt, recognized a right of publicity protecting the commercial value of a celebrity’s identity. The district court had read that right to cover only the appropriation of a celebrity’s “name or likeness.” Braxton had used neither: the toilets did not say “Johnny Carson,” carry his photograph, or mimic his voice. On that narrow view, there was no appropriation.

The Sixth Circuit rejected the premise. The right of publicity, it held, is not a list of forbidden signifiers but a protection of the person behind them. The relevant question is whether the defendant has appropriated the plaintiff’s identity, and “identity” can be evoked by signals other than name and face. The phrase “Here’s Johnny,” the court found, was so firmly linked to Carson in the mind of a substantial segment of the viewing public that to invoke it commercially was to invoke him. Braxton conceded as much: he chose the phrase precisely because of its Carson association, and the “Commodian” slogan removed any doubt about whose celebrity he was harnessing. Having taken the value that flowed from Carson’s fame, Braxton could not escape liability merely because he had been clever enough to avoid the obvious identifiers.

Why the unfair-competition claims failed

It matters that Carson lost most of his case. The panel affirmed dismissal of his Lanham Act and common-law unfair-competition claims because those theories require a likelihood of consumer confusion about source, sponsorship, or endorsement. The district court had found, and the appellate court accepted, that consumers were unlikely to believe Carson sponsored or was connected to a portable-toilet business. The privacy theory fared no better. What survived was the distinctly different publicity claim — and the distinction is the doctrinal payoff of the case.

Unfair competition asks whether the public is deceived. The right of publicity asks whether the defendant has helped itself to the commercial magnetism of a famous identity, deception or not. Carson did not need to prove that anyone thought he endorsed the toilets; he needed to prove that the defendant had cashed in on his persona. The phrase did exactly that. By separating the two inquiries, the Sixth Circuit clarified that publicity liability does not depend on confusion, a point that distinguishes it from trademark-style theories and gives it independent force.

The catchphrase as appropriable property

Carson is the leading authority for the proposition that a catchphrase can be the vehicle of misappropriation. The court placed the phrase alongside other non-name, non-likeness identifiers that earlier courts had protected — a distinctive nickname, a recognizable race car, an imitated style — and treated the underlying principle as constant. The protected subject matter is recognition value. If the public uses a particular cue to call a specific celebrity to mind, an advertiser who deploys that cue to sell goods has appropriated something that belongs, in commercial terms, to the celebrity.

The court was careful about the source of the value. “Here’s Johnny” was not a generic greeting; it had acquired its commercial pull only because of its decades-long, exclusive association with Carson’s program. The phrase was, in effect, a secondary signifier of Carson the way a logo is a signifier of a brand. That framing both justified the holding and suggested its limit: the right attaches to phrases that genuinely identify a particular person, not to common expressions a celebrity happens to have used.

Judge Kennedy’s partial dissent pressed on exactly this limit. She feared that a rule keyed to identification alone — without asking whether the celebrity had himself built commercial value in the phrase — would let publicity rights metastasize, capturing any words the public links to a famous person and chilling legitimate uses. Her concern anticipated the central anxiety of modern misappropriation law: a doctrine defined by what brings a celebrity to mind has no natural stopping point.

Open questions

  • How strong must the association be? The panel relied on the phrase’s near-exclusive link to Carson, but offered no test for how widely or strongly a public must connect a phrase to a person before it becomes appropriable.
  • Must the celebrity have commercialized the phrase first? Judge Kennedy would have asked whether Carson had built independent commercial value in “Here’s Johnny.” The majority did not require it, leaving the role of the plaintiff’s own use unsettled.
  • Where is the line for expressive or parodic uses? The defendant’s slogan was a joke, yet liability attached. Carson predates the modern transformative-use and First Amendment frameworks that later courts use to protect commentary and humor.
  • Does the principle extend beyond entertainers? The recognition-value theory presumes a famous persona whose cues the public has learned. Its application to ordinary individuals, or to phrases with multiple associations, remains uncertain.

Implications

  • Catchphrases are appropriable identity. A signature phrase tied to a single performer can support a right-of-publicity claim even when name, likeness, and voice are absent.
  • Publicity is not confusion. The claim survived even though the unfair-competition theories failed; a plaintiff need not show consumers were deceived about endorsement.
  • Avoiding the obvious identifiers is not a safe harbor. Designing a campaign to evoke a star while omitting his name and face does not defeat liability if the chosen cue identifies him.
  • The source of the value matters. Protection rests on the phrase’s acquired, exclusive association with the celebrity, which both supports and bounds the right.
  • The boundary problem was present at the creation. Judge Kennedy’s dissent framed the overbreadth worry that still dominates disputes over evoked personas, sound-alikes, and digital replicas.

Frequently asked questions

Did the toilet company use Johnny Carson’s name or picture? No. It used neither his legal name nor his photograph nor his voice. It used the phrase “Here’s Johnny,” with which Ed McMahon introduced Carson on the Tonight Show, plus a punning slogan. The Sixth Circuit held that appropriating that phrase appropriated Carson’s identity for purposes of the right of publicity.

Why did Carson win on publicity but lose his other claims? The Lanham Act and unfair-competition theories require a likelihood of consumer confusion about sponsorship or endorsement, which the courts found absent for a portable-toilet business. The right of publicity is different: it protects the commercial value of identity regardless of whether consumers are confused, so it could succeed where the confusion-based claims could not.

Is Carson still cited today? Yes. It remains a foundational authority for the rule that non-name, non-likeness identifiers — including catchphrases — can be the subject of misappropriation, and it is frequently paired with later identity-appropriation cases that wrestle with how far the principle should extend.

Authorities and sources