UPDATE 1-Howard Stern ex-sidekick 'Stuttering John' loses Sirius XM appeal

(Adds comment from plaintiff's lawyer)

By Jonathan Stempel

NEW YORK, Oct 4 (Reuters) - John Melendez, a former Howard Stern sidekick known by his alter ego Stuttering John, on Tuesday lost his appeal in a lawsuit claiming that Sirius XM Holdings Inc improperly exploited his celebrity on channels dedicated to the radio and television host.

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

Circuit Judge Joseph Bianco said Melendez failed to plausibly allege that Sirius "usurped his identity" by using his name or likeness independent of airing excerpts from old episodes, meaning that federal copyright law preempted his "right of publicity" claims.

In a 34-page decision, Bianco distinguished Melendez's lawsuit from cases in which judges allowed right of publicity claims where sound-alikes mimicked singer Bette Midler's voice to sell Ford vehicles and singer Tom Waits' voice to sell Doritos.

"To the extent that Melendez appears in Sirius XM'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 fifteen years," Bianco wrote.

Melendez has said he averaged a $35,000 salary while working for Stern. His lawyer Michael Popok said Melendez should have been compensated "for years of creative work for which he was not adequately paid."

Sirius and its lawyer 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 agreement to jump to New York-based Sirius from conventional airwaves, beginning in 2006.

That agreement included airings of old shows, and Melendez estimated that the archives included 13,000 hours of episodes featuring him.

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

Melendez has had a speech impediment since childhood. Stern dubbed him Stuttering John, and he became known for asking impertinent questions to celebrities.

The case is Melendez v. Sirius XM Radio Inc, 2nd U.S. Circuit Court of Appeals, No. 21-1769. (Reporting by Jonathan Stempel in New York; Editing by David Gregorio and Bill Berkrot)