Former ‘Stuttering John’ Sidekick Howard Stern Loses Sirius XM Appeal

NEW YORK, Oct 4 (Reuters) – John Melendez, a former Howard Stern sidekick known by his alter ego Stuttering John, lost his appeal on Tuesday in a lawsuit claiming Sirius XM Holdings Inc (SIRI.O) misused his fame on the channels dedicated to the radio and television presenter.

In a 3-0 decision, the 2nd U.S. Circuit Court of Appeals in Manhattan denied Melendez’s claim that Sirius owed damages for using his name, personality and voice from old recordings in advertising without permission. , to add and retain listeners.

Circuit Judge Joseph Bianco said Melendez made no plausible allegation that Sirius “impersonated” him using his name or likeness regardless of airing clips from old episodes, meaning the federal copyright law pre-empted its “right of publicity” claims.

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In a 34-page decision, Bianco singled out Melendez’s lawsuit from cases in which judges allowed the right to claim advertising where sounds imitated singer Bette Midler’s voice to sell Ford vehicles and the singer’s voice. Tom Waits to sell Doritos.

“To the extent that Melendez appears in Sirius XM promotional material, his appearances are tied to a product to which he has a very relevant connection: The (Howard Stern) Show in which he appeared as a leading actor for over fifteen years,” Bianco wrote.

Melendez said he averaged $35,000 while working for Stern. His lawyer Michael Popok said Melendez should have been compensated “for years of creative work for which he was not properly paid”.

Sirius and his attorney Mark Baghdassarian declined to comment.

Melendez appeared on Stern’s radio show from 1988 to 2004, and later became the announcer for NBC’s “The Tonight Show With Jay Leno.”

He left Stern’s show the same year Stern struck a five-year, $500 million deal to move to New York-based Sirius from conventional airwaves, starting in 2006.

This deal included airing old shows, and Melendez estimated the archive included 13,000 hours of episodes featuring him.

Tuesday’s ruling upheld a June 2021 decision by U.S. District Judge Paul Crotty in Manhattan.

Melendez has had a speech impediment since childhood. Stern nicknamed him Stuttering John, and he became known for asking saucy questions of celebrities.

The case is Melendez v. Sirius XM Radio Inc, 2nd US Circuit Court of Appeals, No. 21-1769.

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Reporting by Jonathan Stempel in New York; Editing by David Gregorio and Bill Berkrot

Our standards: The Thomson Reuters Trust Principles.

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