Baiul v. NBCUniversal Media, LLC , 607 F. App'x 99 ( 2015 )


Menu:
  •      14-1813(L)
    Baiul v. NBCUniversal Media, LLC
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
    ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
    PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
    DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
    SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    1            At a stated term of the United States Court of Appeals
    2       for the Second Circuit, held at the Thurgood Marshall United
    3       States Courthouse, 40 Foley Square, in the City of New York,
    4       on the 23rd day of June, two thousand fifteen.
    5
    6       PRESENT: DENNIS JACOBS,
    7                GUIDO CALABRESI,
    8                GERARD E. LYNCH,
    9                              Circuit Judges.
    10
    11       - - - - - - - - - - - - - - - - - - - -X
    12
    13       Oksana S. Baiul,
    14                Plaintiff-Appellant,
    15                                                                       14-1813(L)
    16                    -v.-                                               14-2892(con)
    17                                                                       14-3339(con)
    18       NBCUniversal Media, LLC and NBC Sports
    19       Network, L.P.,
    20                Defendants-Appellees.*
    21
    22       - - - - - - - - - - - - - - - - - - - -X
    23
    24       FOR APPELLANT:                        RAYMOND J. MARKOVICH, West
    25                                             Hollywood, California.
    *
    The Clerk of Court is respectfully directed to
    amend the official caption in this case to conform with the
    caption above.
    1   FOR APPELLEES:             CHELLEY E. TALBERT (Sasha Segall
    2                              on the brief), New York, New
    3                              York.
    4
    5        Appeal from a judgment of the United States District
    6   Court for the Southern District of New York (Forrest, J.).
    7
    8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
    9   AND DECREED that the judgments of the district court be
    10   AFFIRMED.
    11
    12        Plaintiff Oksana S. Baiul appeals from the judgments of
    13   the United States District Court for the Southern District
    14   of New York (Forrest, J.) granting defendants’ motions for
    15   summary judgment and for attorney’s fees. We assume the
    16   parties’ familiarity with the underlying facts, the
    17   procedural history, and the issues presented for review.
    18
    19        In affirming the dismissal of a related lawsuit a few
    20   months ago, we identified “Baiul [as] a world famous figure
    21   skater, [who] won the 1993 World Championship for Ladies’
    22   Figure Skating and the 1994 Olympic Gold Medal in Ladies’
    23   Figure Skating.” Baiul v. Disson, No. 14-1741, 
    2015 WL 24
       1726168, at *1 (2d Cir. Apr. 16, 2015). Her latest lawsuit
    25   alleges that she was tagged with a reputation as a “no show”
    26   after publication of a press release falsely stating that
    27   Baiul would be appearing on a nationally televised figure
    28   skating special notwithstanding that she had informed the
    29   show’s producer that she would not be participating. The
    30   district court granted summary judgment (and awarded
    31   attorney’s fees) to defendants-appellees NBCUniversal Media,
    32   LLC and NBC Sports Network, L.P. (“NBC”). We affirm for
    33   substantially the reasons set forth in the series of
    34   opinions issued by the district court.
    35
    36        1. As to Baiul’s claims under New York Civil Rights
    37   Law § 51, even assuming that NBC made “commercial use” of
    38   Baiul’s name, its use fell within the exception for
    39   “incidental use.” See, e.g., Groden v. Random House, Inc.,
    40   
    61 F.3d 1045
    , 1049 (2d Cir. 1995). That exception applies
    41   notwithstanding the factual error in the press release:
    42   “where falsity is the gravamen of a § 51 claim, First
    43   Amendment guarantees permit imposition of liability only
    44   where actual malice is shown.” Lerman v. Flynt Distributing
    45   Co., 
    745 F.2d 123
    , 135 (2d Cir. 1984). Here, no reasonable
    46   jury could find that NBC acted with “actual malice,” and
    2
    1   “there is no serious dispute that Baiul is a public figure,”
    2   Baiul, 
    2015 WL 1726168
    , at *1.
    3
    4        2. Baiul’s Lanham Act claims fail because, among other
    5   reasons, Baiul presented virtually no evidence that she
    6   suffered any damages, or that NBC profited from the error in
    7   the press release. See 
    15 U.S.C. § 1117
    (a); see also George
    8   Basch Co. v. Blue Coral, Inc., 
    968 F.2d 1532
    , 1537 (2d Cir.
    9   1992).
    10
    11        3. The district court did not clearly err in finding
    12   that Baiul filed this lawsuit for an improper purpose, and
    13   therefore did not abuse its discretion in deciding to award
    14   reasonable attorney’s fees to NBC. Nor did the district
    15   court abuse its discretion in calculation of a reasonable
    16   fee.
    17
    18                             *    *   *
    19
    20        For the foregoing reasons, and finding no merit in
    21   Baiul’s other arguments, we hereby AFFIRM the judgments of
    22   the district court.
    23
    24                                 FOR THE COURT:
    25                                 CATHERINE O’HAGAN WOLFE, CLERK
    26
    27
    28
    29
    30
    31
    32
    33
    34
    35
    36
    37
    38
    3