January 05, 2012 9:23am PT by Eriq Gardner
HBO Asks Judge to Toss MTV Star's Lawsuit Over 'Entourage' Character 'Johnny Bananas'
HBO has gone ape crazy over the idea that anyone would assert ownership of a nickname. The pay cable network is in a New York court this week trying to stop MTV reality star John Devenanzio's lawsuit over the use of "Johnny Bananas" in the TV series Entourage.
Devananzio, who appeared as a cast member on MTV's The Real World Key West and several other MTV reality shows, sued HBO, parent Time Warner and Entourage creator Doug Ellin in October, claiming that he is popularly known in the entertainment world as "Johnny Bananas" and that a plot line during the final two seasons of the series violated his publicity and privacy rights, defamed him and caused him emotional distress.
Specifically, the plot featured the Kevin Dillon character of "Johnny Drama" preparing to play a monkey named "Johnny Bananas" in an animated TV show-within-a-TV show. Devananzio said the defendants were featuring an "unwarranted, unauthorized, and unfavorable mention of plaintiff's name and personality, and allusions to plaintiff's physical and mental character."
In response, HBO has filed a motion to dismiss that ridicules the plaintiff for having a "fundamental misunderstanding of the law governing publicity and privacy rights."
HBO gives three main reasons why it believes Devenanzio's claims are flawed.
First, the network asserts that nicknames like "Johnny Bananas" are not protectible under New York law. As proof, several cases are cited, including one where Theodor "Dr. Seuss" Geisel was not permitted to bring a privacy lawsuit based on his trade name.
HBO also says there's no connection between the "Johnny" of "Johnny Bananas" and Devananzio, despite what the plaintiff believes. The network gives the full plot line of the story arc used in Entourage, including script excerpts, and says Devananzio has failed to demonstrate a connection. A shared name doesn't amount to much, says the network. As proof, several more cases are cited, including one unsuccessful lawsuit brought by Michael Costanza against Jerry Seinfeld over the "George Costanza" character on Seinfeld.
Finally, even if nicknames are protectable and HBO evoked the plaintiff in its series, the network argues the the lawsuit should still be thrown the way of the apes because the name wasn't used in advertising. The law "does not give rise to a cause of action merely because a person is not happy about how they have been portrayed in an expressive work," argues HBO in its brief, adding that a claim is only permitted to "nonconsensual commercial appropriations."
HBO doesn't rest there, saying there are other reasons (like statute of limitations) that cause Devananzio's lawsuit to fail. But we'll end on a screenshot from the scene where Dillon questions whether "Johnny Bananas" is really his likeness. The photo was included in the motion and pretty much sums the meta-insanity of the case. Talk about bananas...