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Longtime Howard Stern Show personality “Stuttering John” Melendez is suing SiriusXM Radio for using his archived hot-button interviews with the likes of the Dalai Lama, Ringo Starr and Mike Tyson without compensation and in violation of his publicity rights.
Melendez was a performer on the radio show from 1988 until 2004 — right before the program moved from terrestrial radio to the satellite giant in a $500 million deal, according to the complaint filed Wednesday in New York federal court. During that time, Melendez says he turned his cult following into a fan base of millions — which resulted in movie roles, landing his own radio show and a gig as an announcer, writer and performer on The Tonight Show With Jay Leno.
“Plaintiff has spent considerable time and energy cultivating his career, managing his celebrity and creating considerable commercial value in his identity and voice,” writes attorney Michael Popok in the complaint. “But, Sirius XM, in violation of California law preserving a celebrity’s right to protect how his identity, likeness, name, image and voice are used for commercial gain, has exploited Plaintiff’s considerable efforts, and aired thousands of radio clips featuring ‘Stuttering John’s’ voice and his exploits from the recorded archives of its crown jewel radio program, The Howard Stern Show.”
Melendez’s complaint says his alter ego “Stuttering John” used his speech impediment to disarm targets of his bit, which included interviewing stars and politicians at press conferences, events and on the street and asking “impertinent and shocking questions” or pretending to not know who the person was.
These days he’s a best-selling author (his memoir, Easy for You to Say, was published in 2018) and hosts The Stuttering John Podcast — on which he pranked-called the White House “pretending to be New Jersey ‘Senator Bob Menendez,’ and had a four-minute conversation with President Trump who was aboard Air Force One, primarily about immigration reform and the then U.S. Supreme Court vacancy.”
Melendez says Sirius is exploiting his fame to attract new subscribers and advertising dollars. In response to a cease and desist letter, Melendez says Sirius threatened to take his current podcast off of its Pandora streaming service.
According to the complaint, Sirius acquired a license to not only current episodes of the show but also to air full or partial episodes from the archives. Melendez argues that it’s disregarding his right of publicity by using his identity, likeness, name, image and voice for its commercial advantage. He’s seeking compensatory, statutory and punitive damages plus disgorgement of profits earned in relation to the exploitation of his celebrity and an injunction barring Sirius from continuing the alleged improper conduct.
Disputes like this are relatively common in the sports world, and typically haven’t ended in favor of the talent. The NFL in 2014 beat a suit from ex-players over the use of their likenesses in video footage, in part because the court found “brand enhancement alone is not sufficient to render a production advertising as a matter of law” and ruled the projects were protected by the First Amendment. Further, it was ruled that the NFL’s copyright in the game footage foreclosed the players’ publicity rights. In 2015, the 8th Circuit U.S. Court of Appeals upheld an ESPN defeat of a complaint from professional wrestler Steve “Wild Thing” Ray over rebroadcasts of old matches that held his “likenesses could not be detached from the copyrighted performances that were contained in the films.” And, in 2017, the 9th Circuit tossed claims from NCAA basketball players related to their images in photographs, finding that while a publicity rights claim can proceed when “a likeness is used non-consensually on merchandise or in advertising” it’s not the case when a likeness has been captured in a copyrighted work for personal use. The 9th Circuit back in 2006 also rejected a recording artist’s publicity rights claim against Sony over a sound recording finding that “federal copyright law preempts a claim alleging misappropriation of one’s voice when the entirety of the allegedly misappropriated vocal performance is contained within a copyrighted medium.”
These disputes may serve as a roadmap and it’s likely Melendez’s case could turn on whether or not a New York federal judge considers any of Sirius’ use to be advertising.
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