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Melendez v. Sirius XM Radio Inc.

Docket 21-1769, U.S. Court of Appeals, Second Circuit (July 21, 2021)
Civil Rights - Other (Appeals)
Case Type4440 Civil Rights - Other
Tags4440 Civil Rights, Other, 4440 Civil Rights, Other
Plaintiff - Appellant John Edward Melendez
Defendant - Appellee Sirius XM Radio, Inc., a Delaware corporation
Melendez
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Opinion

Document Melendez v. Sirius XM Radio Inc., 21-1769 (2d Cir. Oct. 4, 2022)
Branded “Stuttering John,” Melendez contributed regularly to the HS Show, becoming well-known for the interviews he conducted with politicians and celebrities that featured “impertinent, confrontational, and intentionally clueless questions in the street, at red carpet events and during promotional appearances and press conferences to shock his targets and elicit
For purposes of this opinion, we use the phrase “name or likeness” to broadly encompass one or more of his attributes that could arguably be implicated in this case under California’s common or statutory law right of publicity based upon the allegations in the amended complaint, including his identity, voice, photograph, image, and/or persona.
For the amended complaint to survive a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6), it “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted).
In a last-ditch effort to place his claims outside the subject matter of the copyrightable works at issue here (and more in the realm of the above-referenced, distinguishable cases), Melendez speculatively suggests, for the first time on appeal, that excerpts featuring him “could have been manipulated in ways that are clearly impermissible,” such as “an advertisement for the HS [Show] or related products that was scripted to use Mr. Melendez’[s] trademark stuttering affliction, ‘S-s-s-subscribe to Sirius XM to get Howard 101.’” Appellant’s Br.
Ultimately, his right of publicity claims, under both common and statutory law, are aimed at stopping the reproduction of copyrightable works that embody his identity—the excerpts of the archival episodes of the HS Show—not the independent use of his identity to sell unrelated goods or services without his permission.
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