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,

on the 23rd 4 day of June, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 GUIDO CALABRESI,

8 GERARD E. LYNCH,

9 Circuit Judges.

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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., 

Defendants-Appellees.* 20

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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

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