Carson v. Here's Johnny Portable Toilets, Inc.
| Decision Date | 26 January 1987 |
| Docket Number | No. 85-1447,85-1447 |
| Citation | 810 F.2d 104 |
| Parties | John W. CARSON d/b/a/ Johnny Carson; Johnny Carson Apparel, Inc., Plaintiffs-Appellees, v. HERE'S JOHNNY PORTABLE TOILETS, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Allen M. Krass, argued, Krass and Young, Troy, Mich., for defendant-appellant.
Robert M. Newbury, argued, Chicago, Ill., Edward G. Wierzbicki, Michael P. Coakley, Detroit, Mich., for plaintiffs-appellees.
Before JONES and NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
In an earlier published opinion, Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir.1983), this court held that under Michigan law Johnny Carson, one of the plaintiffs herein, has a "right of publicity" in the phrase "Here's Johnny." This case was remanded to the district court, 498 F.Supp. 71, for a determination of appropriate relief, the defendant having improperly exploited the phrase to its own advantage and to the plaintiff's detriment. Upon remand the district court enjoined the defendant from using the phrase anywhere in the country and awarded $31,661.96 in damages, measured by the defendant's profits, plus costs. On appeal the defendant challenges the damage award and asks that we limit the geographical scope of the injunction to the State of Michigan.
One cannot be sure how most jurisdictions other than Michigan would have ruled on the merits of this case. Many states have never considered whether a right of publicity exists, and even fewer have considered whether that right protects not only an entertainer's name or picture but also a phrase or nickname or other symbol associated with the entertainer. At least one of Michigan's neighbors has indicated that it recognizes a right of publicity no less broad than that recognized here: see Hirsch v. S.C. Johnson & Son, Inc., 90 Wis.2d 379, 280 N.W.2d 129 (1979), where Wisconsin extended protection to a famous football player's nickname, "Crazylegs." In Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir.1974), similarly, it was held that the unauthorized depiction in a television commercial of a professional race car driver's distinctive automobile violated the driver's right of publicity under the law of California.
Because there are indications that other states would hold as we have predicted Michigan would, and because the defendant is uncertain, at this point, whether...
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U.S. v. Amc Entertainment, Inc.
...principle that a federal court of appeal's decision is only binding within its circuit." Id. Likewise, in Carson v. Here's Johnny Portable Toilets, Inc., 810 F.2d 104 (6th Cir.1987), Johnny Carson brought suit against a Michigan corporation engaged in renting and selling portable toilets un......
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United Food & Com. Workers v. Wal Mart
...area was upheld. Richardson v. Andrews, 718 S.W.2d 833 (Tx.App.-Houston [14th Dist.] 1986). In the case of Carson v. Here's Johnny Portable Toilets, Inc., 810 F.2d 104 (6th Cir.1987), the issuance of a nationwide injunction to prevent dilution of the plaintiff's estate created rights under ......
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...the defendant's argument that the district court abused its discretion by imposing a nationwide injunction. 810 F.2d 104, 105 (6th Cir. 1987) (per curiam) ("Here's Johnny II"). 15 The facts of Here's Johnny II are distinguishable from the facts of this case. In Here's Johnny II, the defenda......
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...was upheld. Richardson v. Andrews, 718 S.W.2d 833 (Tx. App. -Houston [14th Dist.] 1986). In the case of Carson v. Here's Johnny Portable Toilets, Inc., 810 F. 2d 104 (6th Cir. 1987), the issuance of a nationwide to prevent dilution of the plaintiff's estate created rights under a trademark ......