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Howard Stern sidekick loses appeal in lawsuit against SiriusXM

Former "Howard Stern Show" personality John Melendez appears in a still frame from a WOR-TV broadcast.
Former “Howard Stern Show” personality John Melendez appears in a still frame from a WOR-TV broadcast. (Still frame courtesy WOR-TV/Fox Television Stations, Graphic by The Desk)

A panel of judges rejected an appeal brought by a former Howard Stern Show sidekick who sued SiriusXM Pandora for re-airing some of his appearances on the show.

The lawsuit was brought by former radio personality “Stuttering” John Melendez against SiriusXM several years ago, through which he was seeking unspecified damages after the satellite and streaming radio company purportedly used his name and voice without his express permission.

The use was tied to recordings of Stern’s terrestrial radio program that aired on WXRK (92.3 FM) in New York City and syndicated by Infinity Broadcasting (later CBS Radio, now Audacy) across the country. Stern obtained the rights to those recordings as part of a settlement against CBS Radio in 2006, and SiriusXM Pandora has used them on Stern’s two satellite radio channels ever since.

Melendez sued in federal court two years ago, arguing that a California law gave him the exclusive right to his name, voice and other traits. But a judge dismissed Melendez’s claim at SiriusXM’s request, finding that federal copyright law pre-empted state law in that case.

“The commercial advantage Sirius gains from playing the [Howard Stern Show] Archives and running the advertisements flows from the rebroadcasting of the copyrightable sound recordings themselves, not from Melendez’s identity,” Judge Paul Crotty wrote in an order last year.

Melendez appealed the dismissal, with his lawyers arguing that the show and SiriusXM should have paid him directly for “years of creative work” tied to the program. According to Melendez, around 13,000 hours of show recordings feature him and his work in some fashion.

On Wednesday, a three-judge panel disagreed, saying SiriusXM benefitted from the Howard Stern Show in its totality, and that promotional materials containing Melendez’s voice were tied to the shows themselves.

“To the extent that Melendez appears in SiriusXM’s promotional material, his appearances are in connection to a product to which he has a very relevant connection, the [Howard Stern] Show, in which he appeared as a prominent cast member for over 15 years,” one judge wrote.

Melendez left the Howard Stern Show in 2004 to become the permanent announcer of “The Tonight Show with Jay Leno.” That same year, Stern and the show’s other cast members struck a deal with what was then Sirius Satellite Radio to move his broadcast from terrestrial radio to satellite. The move meant dozens of CBS Radio station suddenly had to fill time in a slot once occupied by Stern, while fans had to buy Sirius hardware radios and shell out at least $13 a month for a subscription in order to continue listening to his radio program.

Melendez argued he received a paltry $35,000 a year salary while working on Stern’s terrestrial radio show, while Stern and company benefitted from a long-term deal at Sirius that was valued at around $500 million.

In 2020, Stern signed a five-year extension of his SiriusXM contract that will keep the show on the air through at least 2025. SiriusXM holds the rights to the show’s archives through at least 2032.

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About the Author:

Matthew Keys

Matthew Keys is the publisher of The Desk and reports on the business and policy matters involving the broadcast television, streaming video and radio industries. He previously worked for Thomson Reuters, Disney-ABC, Tribune Broadcasting and McNaughton Newspapers. Matthew is based in Northern California, has won numerous awards in the field of journalism, and is a member of IRE (Investigative Reporters and Editors).