Antitrust Law Daily Wrap Up, ADVERTISING—S.D.N.Y.: Figure skater fails to state Lanham Act, publicity rights claims against NBC and others, (Apr 28, 2014)

By Jody Coultas, J.D.

Figure skater Oksana Baiul failed to state Lanham Act or defamation claims against NBC Universal Media, LLC and others for allegedly misrepresenting her involvement in ice skating broadcasts seen on NBC, the federal district court in New York City has held (Baiul v. NBC Universal Media, LLC, April 24, 2014, Forrest, K.).

Baiul sued NBC Universal, NBC Sports Network, LP, and Disson Skating, LLC for violations of the Lanham Act, New York Civil Rights Law§ 51, common law fraud, and negligent misrepresentation. She filed a separate libel suit against Disson, a third-party producer that purchases broadcast time from NBC Sports to air prepackaged programming on NBC.

Disson purchased sixteen hours of broadcast time in both the 2010-2011 and 2011-2012 seasons, which corresponded to at least eight, two-hour figure skating shows. Baiul agreed to participate in two shows in the 2011-2012, but backed out due to health reasons. Prior to learning that Baiul would not participate in the shows, Disson sent proposals to a number of companies seeking sponsors for the shows. These included Baiul’s name and likeness. Two radio stations used Baiul's name on their websites in order to promote a show.

NBC Sports played no role in the production of any shows, or advertising for the shows, but did prepare an informational press release about each program and posted it on NBCUniversal's Media Village a few days before each broadcast. No television advertisements or promotions for the broadcast included Baiul. One such posting incorrectly listed Baiul as a performer in a show, an error NBC Sports was not aware of until Baiul’s attorney sent a letter suggesting the press release violated several laws.

Lanham Act Claim

The Lanham Act prohibits using, in commerce, any false designation of origin which is likely to cause confusion or mistake or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person. Using a false designation of origin in commercial advertising or promotion that misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities is also prohibited.

Use in commerce. NBC and Disson could not be held liable under the Lanham Act because the uses alleged were not in commerce, according to the court. Baiul alleged that NBC and Disson used her name and likeness without permission in a press release, on The Entertainment Hotline website, in certain background information about the broadcast sent by Disson to Baiul’s agent, and on the websites for the radio stations. However, neither NBC nor Disson owned, operated, or were affiliated with the websites that allegedly used Baiul's name, and neither company had any involvement at all with the postings. The background information concerning the broadcast was never displayed to consumers or sent to anyone else besides Baiul’s agent. Finally, the press release was not seen by the television viewing audience, advertisers, or the general public. NBC played no role in selling advertisements and, because the press release was published approximately 48 hours before the broadcast, it had no effect on Disson's advertising sales.

Injury. Baiul also failed to show that she was injured, or likely to be injured, by the allegedly false designations of origin concerning the Disson broadcasts, according to the court. The damages sought—over $1 million in compensatory damages and $500,000 in punitive damages—were based on damage to her reputation as a result of fans not purchasing tickets to her shows, potential advertisers and show promoters becoming leery of working with her, and a decrease in the syndication of two 1994 movies she was involved with.

However, the press release was published after the live show, and could not have impacted ticket sales, the court observed. Baiul also failed to identify a single fan or potential show producer who concluded she was a no-show because of the press release. The court also noted that the assumptions made by Baiul, her business manager, and her attorney in calculating the proffered damages were both incredible on their face and directly contradicted by the record evidence.

Libel Claim

To state a claim for libel in New York, Baiul was required to show: (1) a written defamatory statement of fact concerning the plaintiff; (2) publication to a third party; (3) fault (either negligence or actual malice depending on the status of the libeled party); (4) falsity of the defamatory statement; and (5) special damages or per se actionability.

The court dismissed Baiul’s libel claims against Disson. The libel suit was filed based on statements made by Disson’s owner published in the New York Daily News and in the New York Post about Baiul’s Lanham Act action against NBC. The Daily News quoted Disson as saying "Each time she had been a little flaky. One time, she didn't show up. She was out shopping. Another time, she refused to do a retake after she had fallen .... She was grateful for a third chance. We had a good talk. I said I'd send a contract."

Baiul could not show that any of the allegedly libelous statements were false or made with actual malice or knowledge that the statements were false. Disson's statements concerning the Lanham Act action, including his description of the suit as "just weird," fell under New York’s absolute litigation privilege and could not serve as a basis for a libel action. Baiul also failed to present any non-speculative evidence as to the damages. As previously noted by the court, Baiul’s damages assumptions and calculations were wholly without a basis in fact.

The case is No. 13 Civ. 2208 (KBF).

Attorneys: Raymond James Markovich for Oksana S. Baiul. Chelley Ernette Talbert for NBC Universal, NBCUniversal Media, LLC, and NBC Sports Network, LP. Joseph Tacopina (Joseph Tacopina, PC) for Disson Skating, LLC.

Companies: NBC Universal Media, LLC; NBC Sports Network, LP; Disson Skating, LLC

Cases: Advertising NewYorkNews