     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.
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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
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