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Last week, the U.S. Court of Appeals for the Second Circuit issued an opinion in <em>Melendez v. Sirius XM Radio, Inc.</em>, No. 21-1769-cv (Oct. 4, 2022), affirming the Southern District of New York’s grant of a motion to dismiss with prejudice Melendez’s right of publicity claims alleging violations of California law.

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Melendez, known by the moniker “Stuttering John,” appeared on the Howard Stern Show from 1988 to 2004. In 2005, Sirius purchased the rights to broadcast both new and archival episodes of the show. In its advertising, Sirius included clips from old episodes of the show that included audio of Melendez performing under his Stuttering John persona. Melendez sued Sirius, arguing that Sirius was using his name or likeness for commercial purposes without his permission. Sirius moved to dismiss Melendez’s claims as preempted by the Copyright Act, and the district court granted Sirius’s motion. Melendez appealed.

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In affirming the district court’s decision, the Second Circuit applied its own two-prong test to determine if a state law claim is preempted by the Copyright Act: (1) whether the claim applies to subject matter falling within the ambit of one of the categories of copyrightable works (the “subject matter requirement”); and (2) whether the state-created right was abridged by an act that would, by itself, infringe one of the exclusive rights provided by federal copyright law (the “general scope requirement”).

In evaluating the subject matter requirement, the Court considered that the clips at issue were not presented in a way that suggested Melendez’s endorsement or modified to emphasize Melendez’s name or likeness in any way separate from the excerpts themselves. Given this, the Court concluded that Melendez was essentially seeking was to preclude Sirius from broadcasting the clips themselves, which were inarguably copyrightable works. The subject matter requirement was, therefore, met.

In evaluating the general scope requirement, the Court found that, because Melendez was merely attempting to prevent Sirius from rebroadcasting clips of the Howard Stern Show and nothing more, the right Melendez was asserting was equivalent to exclusive rights within the general scope of copyright. The general scope requirement was, therefore, met.

Second Circuit Affirms Dismissal of “Stuttering John’s” Right of Publicity Claims as Preempted by the Copyright Act

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