John Devenanzio "Bananas" Over Dismissal - Fordham Intellectual Property, Media & Entertainment Law Journal
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John Devenanzio “Bananas” Over Dismissal

John Devenanzio “Bananas” Over Dismissal

New York Superior Court Judge Lucy Billings recently dismissed claims brought by MTV reality star John Devenanzio against Time Warner and its subsidiary company HBO. John Devenanzio, or, as he is more popularly known in the entertainment industry, “Johnny Bananas,” sued HBO last year, alleging infringement, defamation, and infliction of emotional distress by improperly using his nickname in the TV series Entourage as the titular character of a show (within the show) — an animated cartoon gorilla named “Johnny Bananas,” portrayed by Kevin Dillon’s character.

Devenanzio, who  appeared as a cast member on The Real World Key West and  won the most recent season of MTV’s The Challenge, had his lawyer send a cease-and-desist letter to HBO last summer. The network was apparently unmoved by Devenanzio’s actions, because on October 3, 2011, Devenanzio filed a complaint in New York Superior Court against HBO, its parent Time Warner, and Entourage creator Doug Ellin, alleging that the defendants featured a show that used an “unwarranted, unauthorized, and unfavorable mention of plaintiff’s name and personality, and allusions to plaintiff’s physical and mental character.”

Devenanzio was represented by Stephanie Ovadia, the same attorney who represented Lindsay Lohan in her publicity rights claims against E-Trade and musical artist Pitbull. Devenanzio asserted that the basis of his lawsuit was that HBO’s use of the name “Johnny Bananas” had the ability to cause him financial harm and create confusion. In an interview with Huffington Post TV, Devenanzio stated, “I make a large part of my living doing appearances, just being at bars and clubs and colleges at different events. The problem that this posed is that there started to be confusion, where people started saying, ‘Well, who are we booking? Are we booking you, or are we booking the Johnny Drama character? Are people gonna know it’s you?'”

However, HBO did not balk at Devenanzio’s allegations and responded by claiming that Devenanzio had a “fundamental misunderstanding of the law governing publicity and privacy rights.” The network in turn claimed that nicknames are not protected under New York law, and that Devenanzio failed to establish a connection between his identity and what was displayed in the show. Further, the defendants asserted that the plaintiff’s claim should be dismissed because the nickname “Johnny Bananas” wasn’t used in advertising manner and thus did not meet the commercial bar for such a claim.

Ultimately, New York Superior Court Judge Lucy Billings ruled in favor of HBO, albeit for a different reason. HBO used the “Johnny Bananas” nickname in an Entourage episode that aired on August 15, 2010, and Devenanzio filed his claim on October 3, 2011 — Devenanzio filed his claims after the one-year statute of limitations window for emotional distress claims had closed. Although Devenanzio could technically reassert his claim because it was not dismissed on the merits,  (and Devenanzio says he sees the dismissal “more as a hurdle or roadblock that we’re gonna have to figure a way around”), Judge Billings subtly cautioned Devenanzio against bringing the claim once again by stating, “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.”

Unfortunately for MTV reality star Devenanzio it seems as though he has found one challenge he cannot overcome.

Benjamin Rabinowitz

Ben Rabinowitz is currently a 2L at Fordham Law School. He is originally from Long Island, New York, and graduated from Harvard College with a BA in Economics in 2010. Ben enjoys playing baseball, football, and watching movies.