Judge_Quiz

Comedian Offended by "Bathroom Humor"

Facts:

Johnny Carson, the well-known comedian and T.V. personality, is the former host of the "Tonight Show." Every night, Johnny Carson would be introduced by Ed McMahon's infamous phrase, "Here's Johnny." A large portion of the viewing public eventually understood that "Here's Johnny" meant "Here's Johnny Carson." In order to capitalize on his fame and notoriety, Johnny Carson marketed various "Here's Johnny" products including: clothing, toiletries, cologne, skin shield and soap.

Earl Braxton, founder of "Here's Johnny Portable Toilets, Inc.," also attempted to profit on the "Here's Johnny" slogan. To promote the sale of his toilets, Braxton created the slogan "Here's Johnny, The World's Foremost Commodian."

Johnny Carson did not share Braxton's "bathroom humor." In 1976, Johnny Carson sued "Here's Johnny Portable Toilets, Inc." for unfair competition, trademark infringement and invasion of his right to privacy. Carson argued that his right to privacy was invaded by Braxton's exploitation of his name in an attempt to sell toilets.

The Federal District Court refused to find that Johnny Carson's right of privacy was violated by the Defendent's use of the phrase "Here's Johnny, The World's Foremost Commodian" in connection with the sale of portable toilets. The District Court listed the four categories of the tort of "invasion of privacy:"

Intrusion into plaintiff's private affairs;

Public disclosure of embarrassing private facts;

Publicity which places the plaintiff in a false light in the public eye; and

Appropriation of the plaintiff's name or likeness.

The District Court stated that Johnny Carson's invasion of privacy claim amounted to a claim of misappropriation of Johnny Carson's name for the Defendent's advantage. The District Court held that Johnny Carson's name could not be misappropriated without a showing that the Defendant used his real name, Johnny Carson or Johnny W. Carson. The District Court refused to find that the phrase "Here's Johnny, The World's Foremost Commodian" referred to Johnny Carson by name.

Johnny Carson appealed. You are an Appellant Judge hearing the issue on appeal, how would you decide:

Affirm the District Court and hold that Johnny Carson's name ws not misappropriated because the Defendants failed to refer to him by his actual name - Johnny Carson;
Affirm the District Court and hold that freedom of expression protects entrepreneurs and creative advertisers by narrowly defiing the instances in which one's identity may be misappropriated; namely, by requiring proof that the Defendant used Johnny Carson's actual name;
Affirm the District Court and hold that the phrase "Here's Johnny, The World's Foremost Commodian," does not misappropriate Johnny Carson's name because the phrase, taken as a whole, was obviously a marketing ploy; or
Reverse the District Court and hold that referring to Johnny Carson by name is not required to establish that his name was misappropriated for the benefit of "Here's Johnny Portable Toilets, Inc."

You Be The Judge!

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