Intellectual Property News and Reports

Plaintiff John Edward Melendez appeals from the judgment of the United States District Court for the Southern District of New York (Crotty, J.), which granted defendant Sirius XM Radio, Inc. (“Sirius XM”)’s motion to dismiss Melendez’s claims with prejudice for violations of his right of publicity under California common and statutory law because his claims were preempted by the Copyright Act, 17 U.S.C. § 301. The claims arise from Melendez’s performance under the moniker “Stuttering John” on The Howard Stern Show (the “HS Show”) from 1988 until 2004. Pursuant to a license, Sirius XM airs current, newly-released episodes of the HS Show, as well as full and partial past episodes from the HS Show’s archives that feature Melendez’s performances. Melendez asserts that Sirius XM’s use of excerpts of him from the archival episodes in its online and onair advertisements promoting the HS Show violate his right of publicity under California common and statutory law because his name and likeness have been exploited for Sirius XM’s commercial gain without his permission.

We agree with the district court that Melendez failed to plausibly allege any use of his name or likeness that is separate from, or beyond, the rebroadcasting, in whole or in part, of the copyrightable material from the HS Show’s archives and, thus, his right of publicity claims are preempted by the Copyright Act. Moreover, because Melendez has failed to articulate any allegations that he could add in a second amended complaint that overcome preemption in this case, we conclude that the district court correctly determined that any leave to re-plead would be futile and properly dismissed his claims with prejudice.

Accordingly, we AFFIRM the judgment of the district court.

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