10:33am PT by Eriq Gardner
HBO Wins Lawsuit Over 'Johnny Bananas' Character in 'Entourage' (Exclusive)
A New York judge has dismissed claims brought by MTV reality star John Devenanzio, who alleged in a lawsuit last year that HBO's Entourage damaged his name and personality and caused him emotional distress by featuring a character named "Johnny Bananas."
The Entourage character was played by Kevin Dillon in a show-within-a-show, and Devenanzio, who appeared as a cast member on The Real World: Key West and won the most recent season of MTV's The Challenge, said he was already known in the entertainment world as Johnny Bananas.
But New York Superior Court Judge Lucy Billings has ruled that Devenanzio filed his claims too late.
In the lawsuit, Devenanzio charged HBO, parent Time Warner and Entourage creator Doug Ellin with featuring an "unwarranted, unauthorized and unfavorable mention of plaintiff's name and personality and allusions to plaintiff's physical and mental character."
HBO responded by saying that Devenanzio had a "fundamental misunderstanding of the law governing publicity and privacy rights." The network asserted that nicknames are not protected under New York law, that the plaintiff had failed to establish a connection between his identity and what he saw on the show and that the plaintiff's lawsuit failed because the nickname wasn't used in advertising and thus didn't meet the "commercial" bar for such a claim.
Ultimately, though, Billings gave HBO a victory on a less sexy technicality. The episodes in question started airing on Aug. 15, 2010, and Devenanzio didn't bring the claim until Oct. 3, 2011. The one-year statute of limitations window had closed, so the judge finds the lawsuit to be less "Johnny Bananas" and more "Johnny Rotten."
The judge also adds, "In any event, the telecast, even if repeated, does not constitute atrocious, indecent or utterly despicable conduct meeting the requirements for an intentional emotional distress claim."
Devenanzio was represented in this action by Stephanie Ovadia, who has also represented Lindsay Lohan in publicity rights claims and has been accused of making strange court filings.
HBO was represented by attorneys at Levine Sullivan Koch & Schulz.
Johnny Bananas was the character and title of an animation series in Entourage that featured apes and monkeys. At one point, there were rumors of a spinoff.