Court Tosses “Stuttering John” Lawsuit Based on Copyright Preemption

The judge rejects a claim that SiriusXM violated the right of publicity by broadcasting old Howard Stern shows featuring “Stuttering John” Melendez’s name, voice and likeness.

Quick but important update on a case I first wrote about last December involving “Stuttering John” Melendez, a former Howard Stern show staffer whose schtick consisted of asking ridiculous “gotcha” questions during interviews with celebrities and politicians. Like the time he asked Elizabeth Taylor if selling perfume was one of her career goals, or when he wondered whether Chevy Chase ever read the scripts of the movies he chose to make.

Melendez hasn’t been live on the Stern show for 15 years, having left his former boss to become the announcer on “The Tonight Show with Jay Leno”—a move that didn’t sit well with Stern or most of his fans.

Since then, SiriusXM acquired a license to air the old Stern show clips featuring Melendez, which the satellite network does run on a fairly regular basis. Upset, and believing that Sirius was profiting off his name, voice and likeness, Melendez brought a right of publicity complaint last August.

The Lawsuit

As I previously discussed, the primary argument advanced by Sirius was that Melendez’s right of publicity claim was preempted by the Federal Copyright Act. Because the alleged violation was based entirely on the use of copyrighted radio shows and video clips in which Melendez appeared (as opposed to any independent commercial use of his identity), SiriusXM filed a motion for the case to be dismissed.

After several months and an amended complaint, Judge Paul Crotty of the Southern District of New York today agreed, and threw out Stuttering John’s case with prejudice (read here), which means Melendez doesn’t get another chance to amend.

The Ruling

The Court didn’t buy all of the arguments made by SiriusXM, although the end result is the same. For one thing, the Court held that merely because the recordings at issue fell within the subject matter of copyright, this doesn’t necessarily mean that any right of publicity claim would be subject to preemption.

Instead, relying on a Second Circuit case decided last year involving “50 Cent,” the judge held that the key question was whether the focus of Melendez’s claim was on the recognizable aspects of his identity (which aren’t within the subject matter of copyright) or, on the other hand, whether his claim was focused on the particular copyrightable work in which his identity was embodied.

This seems to be another way of asking how SiriusXM was alleged to be exploiting the work at issue. If the use of the clips was primarily for the purpose of usurping the value of “Stuttering John’s” name and likeness, Melendez may have stated a claim. But here, Melendez didn’t plead any facts that would plausibly suggest that Sirius’ intended audience could reasonably construe the clips as an endorsement of the network by Melendez. Instead, any benefit received by Sirius was tied to the rebroadcast of the copyrightable recordings themselves, not Melendez’s identity.

The Court also found that Melendez’s right of publicity claims asserted rights that weren’t qualitatively different from those protected by the Copyright Act, because the claims were premised on the purported wrongful broadcast of copyrightable sound recordings.

The Bottom Line

Both last year’s Second Circuit case involving 50 Cent (In re Jackson) and the new “Stuttering John” Melendez ruling leave open the possibility that certain right of publicity claims stemming from the exploitation of copyrightable works may not be preempted. In particular, if a plaintiff were to state a plausible claim that his or her identity was used for purposes of endorsement or that the defendant sought some advantage by emphasizing the plaintiff’s identity (as opposed to simply exploiting the work itself), such a claim might survive the preemption analysis. But here, SiriusXM’s activities were focused on advertising and exploiting the Howard Stern Show itself, not to emphasize “Stuttering John’s” name and likeness. So he’s out, case over.

A copy of the opinion is below. As always, let me know your thoughts.