Monkey See, Monkey SueOctober 31, 2011 – Article
On behalf of Law Law Land, I would like to apologize to HBO, the New York courts, and basically, the world at large. A few months ago, my colleague Elisabeth Moriarty suggested that a creative Indonesian monkey should, perhaps, be afforded copyright rights in his adorable self-portrait. That suggestion must have angered the intellectual property gods, who have now unleashed their wrath upon the simian world. Some bozo, I recently learned, sued a cartoon ape for purported right of publicity violations and infliction of emotional distress. Rest easy, Magilla — no one is on to you for that failed bank robbery attempt. I’m talking about the lawsuit recently filed by Johnny Devenanzio…(If you are wondering who this Johnny fellow is, don’t worry, you are not alone.)
For those of you who are not MTV reality show devotees, let’s get you up to speed. Johnny got his start on the Real World Key West, a “true story...of eight strangers...picked to live in a house...work together and have their lives taped...to find out what happens...when people stop being polite...and start getting real.” Johnny then appeared on The Challenge — which used to be called The Real World-Road Rules Challenge, at least back when anyone I know cared about The Real World, or Road Rules, or any kind of challenge that might put the two against each other — and he continued to make a fool of himself on numerous The Challenge spin-offs (all of which involved copious amounts of alcohol, the occasional fist fight, and a fair amount of stupidity). These shows portrayed Johnny as an arrogant, scheming meathead who likes to stir up drama, earning him the nickname “Johnny Bananas.” (Ironically, you can also hire Johnny to give lectures on alcohol awareness, humility, and conflict resolution. That sounds like a great idea…)
Now, let’s get to the lawsuit. With a little help from lawyer Stephanie Ovadia (yes, the same lawyer who represented our beloved Lindsay Lohan in some of her most entertaining lawsuits ever), Johnny is suing the people behind the hit HBO series Entourage (R.I.P.). The lawsuit is based on a storyline involving a fictional cartoon called Johnny’s Bananas in which Kevin Dillon’s character, Johnny “Drama” Chase, lends his voice to a cartoon ape, aptly named Johnny, who tends to go “bananas” when things don’t go his way. Angered by this storyline (and likely upset after his lawyer pointed out that he has a striking resemblance — both mentally and physically — to an unattractive, hot-headed cartoon ape), the real-life Johnny is now claiming that HBO is trying to capitalize on a nickname that he “is solely responsible for creating.” (Apparently Johnny needs to brush up on his Chicago mobster trivia, as he’s not the only “Johnny Bananas” around.)
In his complaint, Johnny seeks an injunction to bar HBO, Time Warner Cable, and Entourage creator Doug Ellin from (a) distributing or broadcasting Entourage’s final season in any way, shape, or form, and (b) manufacturing and selling Johnny’s Bananas merchandise. Johnny also seeks compensatory and punitive damages for the tremendous emotional distress he suffered as a result of Entourage’s “offensive and disparaging” use of his nickname. Does Johnny have a shot at victory?
Well, there is precedent for legitimate celebrities — you know, the kind that anybody has actually heard of — blocking third parties from using their distinctive nicknames in unflattering contexts. In 1978, Muhammad Ali obtained an injunction against Playgirl Magazine based on its publication of a picture of a nude black man seated in the corner of a boxing ring accompanied by the phrase “the Greatest.” In Ali’s case, the court recognized that Ali regularly claimed the nickname “the Greatest” for himself, successfully identified himself as “the Greatest” in the public’s mind, and was (and is) regularly identified as “the Greatest” in the news media. Ali also persuaded the court with his argument that the man pictured in Playgirl had many of the distinctive facial characteristics recognizable as Ali’s features.
While Johnny is no Muhammad Ali, Johnny could succeed on his right of publicity claim if he can prove that Entourage’s unauthorized use of “Johnny’s Bananas” (a) was for advertising or trade purposes and (b) sufficiently evoked Johnny’s likeness in the public’s mind. Johnny will face two major hurdles.
First, unlike “the Greatest,” only a small segment of the population is familiar with Johnny and his nickname. (Let’s face it, most people don’t have the time to keep up with The Real World and The Challenge with shows like Jersey Shore and Teen Mom around.) Nonetheless, Johnny’s lawyer (who will pray to the legal gods for a jury of Johnny’s peers) will do her best to show that (a) Johnny has worked hard to cultivate his nickname, (b) Johnny has successfully identified himself as “Johnny Bananas” in the public’s mind (…or at least in the minds of Johnny’s 33,000+ (!) Twitter followers), and (c) the public would immediately think of Johnny as soon as they saw or heard “Johnny’s Bananas” during Entourage’s final season. To make things even more entertaining at trial, Johnny’s lawyer could also present evidence of the vast similarities between Johnny’s mental and physical traits and those of Entourage’s cartoon ape. (Personally, I think Johnny looks more like Abu from Aladdin…) Of course, Johnny’s case would be much easier if some juicy evidence turned up during discovery, indicating that the title of the fictional cartoon was intended to call Johnny to mind. However, it is unlikely such evidence exists, especially if you believe Entourage’s creators, who claim that they (like so many others) had no clue who Johnny was…until now.
Second, Johnny’s lawyer might have a difficult time showing that “Johnny’s Bananas” was used for purposes of trade or advertising. As HBO’s army of lawyers would gladly point out, a television show, much like a movie or a song, is a form of artistic expression protected by the First Amendment. HBO’s lawyers would likely argue that the title Johnny’s Bananas is an integral part of Entourage’s artistic expression, as it references two central characters — (1) the disgruntled banana-loving cartoon ape named Johnny and (2) the voice of the cartoon ape, Johnny Drama, who has some anger management issues of his own. (Plus Johnny’s Oranges or Drama’s Bananas just doesn’t have the same ring to it.)
Johnny’s lawyer may have better luck showing that HBO’s use of “Johnny’s Bananas” on merchandise is a commercial use subject to the right of publicity protections. But again, Johnny’s lawyer must still prove that “Johnny’s Bananas” sufficiently evoked Johnny’s likeness in the public’s mind — a tricky feat considering the public probably did not know who Johnny was in the first place!
And don’t be surprised here if HBO doesn’t take the easy way out by just paying Johnny to go away. Studios and networks often fight these sorts of cases tooth and nail, even paying more litigating the cases than it would cost to settle them, in order to send a message to other would-be plaintiffs. Plus, HBO might also take a cue from Johnny’s own profile on the MTV website, in which Johnny — whose listed “favorite pastimes” include such surefire jury-winners as “lying, scheming, and conniving” — announces, “This is my time to show that Johnny Bananas is one to be trifled with.”
I’m sure you are, Johnny.