United States District Court, S.D. New York
OKSANA S. BAIUL, Plaintiff,
NBCUNIVERSAL MEDIA, LLC, et al., Defendants. OKSANA S. BAIUL and OKSANA, LTD., Plaintiffs,
STEPHEN DISSON, et al., Defendants.
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
Before this Court are several lawsuits brought by Oksana Baiul ("plaintiff' or "Baiul") against a variety of entities-including agents, networks, producers, coaches, and accountants-that seek millions of dollars in damages for events that took place as recently as within the last two years and as long ago as the last two decades. This Opinion & Order relates to two of those lawsuits; the first suit arises out of alleged commercial uses of Baiul's name and likeness to promote two skating shows in which she never participated, while the second arises out of allegedly defamatory statements about the first lawsuit as reported by two New York City-area newspapers. Before the Court are motions for summary judgment seeking the dismissal of these two suits.
For the reasons set forth below, these suits are wholly without merit, defendants' motions for summary judgment are GRANTED, and these actions are DISMISSED.
I. PROCEDURAL HISTORY
On February 1, 2013, Baiul filed suit against NBC Universal Media, LLC and NBC Sports Network, LP (the "NBC Defendants") and Disson Skating, LLC in New York State Supreme Court, New York County, for violations of the Lanham Act, 15 U.S.C. § 1125(a), and New York Civil Rights Law§ 51, as well as common law fraud and negligent misrepresentation (hereinafter, the "Lanham Act Action"). (Lanham Act Action Notice of Removal, Ex. B ¶¶ 28-61, ECF No. 1.) The Lanham Act Action was removed by Disson Skating, LLC to this Court on April 3, 2013. ( Id. ¶¶ 1-4.)
On February 26, 2013, Baiul filed suit against Stephen Disson and Disson Skating, LLC (the "Disson Defendants") in New York State Supreme Court, New York County, for libel (hereinafter, the "Libel Action"). (Libel Action Notice of Removal, Ex. B ¶¶ 46-221, 13 Civ. 2208, ECF No. 1.) The Libel Action was removed by the Disson Defendants on April 3, 2013 ( Id. ¶¶ 1-7), and this Court accepted it as related to the Lanham Act Action on April 8, 2013.
By order dated May 1, 2013, fact discovery in both actions was scheduled to close on August 30, 2013. At a status conference on August 29, 2013, plaintiffs counsel stated, for the first time, his desire to amend the complaints in both actions. Following motions to amend the complaints pursuant to Rule 15, the Court granted plaintiffs motion to amend the complaint in the Libel Action on consent in light of the fact that the only change to be made was a change to the damages amount listed in the complaint that had been previously provided to the Disson Defendants in discovery. (9/24/13 Order, 13. Civ. 2208, ECF No. 25.) The Court denied plaintiffs motion to amend in the Lanham Act Action because, "[o]n a substantive level, such amendment would be futile as the allegations set forth in the proposed amended complaint fail to allege sufficient facts to support a claim of successor liability" and "the amendment comes at too late a stage in these proceedings" such that defendants would be prejudiced. (9/24/13 Order, ECF No. 29.)
On October 24, 2013, defendants in both actions moved for summary judgment seeking dismissal of the operative complaints. Plaintiff opposed the motions,  a and the motions became fully briefed on December 16, 2013.
In support of their motion for summary judgment, the NBC Defendants submitted a statement of material facts pursuant to Local Civil Rule 56.1 ("NBC SOF") (ECF No. 43), a response to Baiul's statement of additional facts pursuant to Local Civil Rule 56.1 ("NBC RSOF") (ECF No. 82), and declarations from, inter alia, Chelley Talbert ("Talbert Deel." and "Talbert Supp. Deel.") (ECF Nos. 34, 81). The Disson Defendants also submitted a statement of material facts pursuant to Local Civil Rule 56.1 ("Disson SOF") (ECF No. 44),  a response to Baiul's statement of additional facts pursuant to Local Civil Rule 56.1 ("Disson RSOF") (ECF No. 79), and declarations from, inter alia, Matthew DeOreo ("DeOreo Deel." and "DeOreo Supp. Deel.") (13 Civ. 2208, ECF Nos. 36, 58). Subject to the limitations imposed by the Court in light of multiple confusing and untimely filings,  Baiul submitted oppositions and statements of additional material facts pursuant to Local Civil Rule 56.1 with respect to both the NBC Defendants ("Baiul-NBC SOF") (ECF No. 69) and the Disson Defendants ("Baiul-Disson SOF") (ECF No. 62), as well as a declaration from, inter alia, Raymond Markovich ("Markovich Deel.") (ECF No. 62-1).
Unless otherwise noted, there is no genuine dispute as to the following material facts.
A. The NBC Defendants
NBC Sports is the sports division of the NBCUniversal Media, LLC television network. (NBC SOF ¶ 1.) NBC Sports broadcasts a diverse array of sports programming, and produces or co-produces hundreds of hours of original sports programming a year. ( Id. ¶¶ 2-3.) NBC Sports sells hundreds of hours of broadcast time annually to third-party producers, so that they can air their sports programming on the NBC broadcast television network ("NBC") or the NBC Sports channel. ( Id. ¶ 4.) NBC Sports airs over nine thousand hours of sports programming annually on NBC and the NBC Sports channels combined. ( Id. ¶ 5.) Advertising for programming produced by NBC Sports is one of the primary sources of revenue for NBC Sports. Id . ¶ 6.)
B. The Disson Defendants
Disson Skating, LLC ("Disson"), organized under the laws of Virginia, is a third-party producer that purchases broadcast time from NBC Sports to air prepackaged programming on NBC. (NBC SOF ¶ 12; Disson SOF ¶ 4.) Disson produces, among other things, figure skating shows, which have aired on NBC, CBS, ESPN, USA, Bravo, Hallmark Channel, TBS, Style, and Ovation. (NBC SOF ¶¶ 13-14.) Stephen Disson is a skating producer and principal of Disson. (Disson SOF ¶ 3.) Disson came into existence in March 2012; prior to March 2012, and at the time of the events relevant to the Lanham Act Action, a separate limited liability company called Disson Skating, LLC of Pennsylvania ("Disson PA") was in operation. (Disson SOF ¶¶ 4-5, 7.)
The format for a Disson figure skating show includes figure skating performances by a number of Olympic, world, or national figure skaters and a live musical act. (NBC SOF ¶ 15.) Disson figure skating shows are taped before a live ticket-buying audience for later broadcast on a national television network. ( Id. ¶¶ 16-17.) Disson has purchased broadcast time from NBC Sports to broadcast its figure skating shows on NBC since 1989. ( Id. ¶ 18.)
C. Oksana Baiul
Baiul is a world famous figure skater who won the 1993 World Championship, Ladies Figure Skating and became the 1994 Olympic Gold Medalist in Ladies Figure Skating. (Disson SOF ¶ 1.) According to Baiul, she is "the highest figure skater who's been on TV and my Olympics were the highest rated Olympics." (DeOreo Deel. Ex. G at 382.) Baiul notes that she has "a title given to me by the media queen of the ice, " and she considers herself a "superstar, " and a "global entertainer." ( Id. Ex. G at 382, 424.)
"Oksana Ltd." is a Pennsylvania corporation that is 100% owned by Baiul; it is the legal entity that has and continues to be used by Baiul for some or all of her contracts and business. (Disson SOF ¶ 2.)
D. The 2010 Time-Buy Between NBC Sports and Disson
When selling broadcast time to third-party producers, NBC Sports frequently enters into "time-buy agreements" with the third-party producer. (NBC SOF ¶ 7.) A time-buy agreement is when a third-party producer purchases time to broadcast its show on an NBC network and takes on the responsibility of production, marketing, and sale of the program (hereinafter, a "Time-Buy"). ( Id. ¶ 8.)
In Time-Buys, the third-party producer recoups its investment by selling advertising to insert in the program and then retaining the proceeds of those sales. ( Id. ¶ 9.) Ratings from shows broadcast under Time-Buy agreements do not factor into overall network ratings, though the shows may contain a few minutes of on-air promotion for future NBC telecasts during a two-hour show. ( Id. ¶ 10; Baiul-NBC SOF ¶ 70.) Third-party producers who have entered into a Time-Buy are required to submit commercials and advertisements to NBCUniversal's standards department 72 hours before a broadcast. (NBC SOF ¶ 12.)
Disson and NBC Sports entered into a Time-Buy agreement dated March 2010, which was amended on September 16, 2010 (the "2010 Time-Buy"). ( Id. ¶ 19.) The 2010 Time-Buy covered Disson's purchase of broadcast time for the 2010-2011 and 2011-2012 seasons. ( Id. ¶ 20.) Disson contracted to purchase a minimum of 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. ( Id. ¶¶ 21-23.) Disson agreed to pay NBC Sports $400, 000 per two-hour show, regardless of the identity of the figure skaters or musical acts that actually performed in each show. ( Id. ¶ 24-27.) The 2010 Time-Buy was amended to add a ninth one-hour show in the 2010-2011 season at an additional cost to Disson of $200, 000. ( Id. ¶ 28.)
Under the 2010 Time-Buy, Disson was responsible for all elements of production of the live figure skating show, including taping the show for television broadcast. ( Id. ¶ 29-31.) Disson represented and warranted to NBC Sports that it had obtained the necessary rights for the performances, including the featured figure skater talent and music. ( Id. ¶ 38.) Disson hired IMG, an independent contractor, to produce the shows; IMG was also responsible for the post-production work on the taped shows. ( Id. ¶¶ 32-33.) Aside from payment of on-air talent by NBC Sports, Disson was responsible for all other production costs, expenses, and liabilities of the figure skating shows covered by the 2010 Time-Buy. ( Id. ¶ 34; Markovich Deel. Ex. 35 at NBCU 00009.) Disson selected the figure skaters that appeared in each figure skating show, and conducted all negotiations in connection with their appearance. (NBC SOF ¶¶ 35-36.) NBC Sports was not a party to Disson's agreements with either the figure skaters, IMG, or the venues. ( Id. ¶ 37.)
Once post-production work was complete, Disson (or IMG) delivered a tape of the show to the NBC Sports production department on the Thursday or Friday before the scheduled weekend broadcast. ( Id. ¶ 39-40.) A member of the NBC Sports production department reviewed the tape to confirm it was appropriate for air; this included confirming that the tape complied with production requirements, such as requisite audio quality and appropriate number and length of commercial spots, and fact-checking to ensure any on-screen graphics were accurate. Id . ¶ 41.)
Disson was entitled to sell advertisements to insert in each program in the form of commercials, billboards, and vignettes, without any limitations as to price. ( Id. ¶¶ 42-43.) Disson retained all proceeds from any advertisements, commercial elements and sponsorships it sold. ( Id. ¶ 44.) The fee Disson paid NBC Sports was not dependent on Disson's ability to sell advertising for any particular broadcast or on any other variable. ( Id. ¶ 46.) NBC Sports did not participate in any conversations with advertisers, review any agreements Disson reached with advertisers, or otherwise participate in any attempts to solicit advertisers for any broadcasts covered by the 2010 Time-Buy. ( Id. ¶ 47.)
One to two minutes during the two-hour broadcast were reserved for the insertion of an announcement for upcoming NBC network telecasts. ( Id. ¶ 48.) One to two minutes were also reserved for the insertion of commercials sold by local NBC affiliates (which were not sold against the content of the program). ( Id. ¶ 49.) NBC Sports did not discuss the content of the Disson programs with the local stations. ( Id. ¶ 50.)
NBC Sport's only commitment to promote the broadcasts was "on-air in NBC Sports programming in accordance with NBC Sports' usual and customary practices and consistent with NBC Sports' promotion of similar sports programming." ( Id. ¶ 53; Talbert Deel. Ex. 5 at NBCU 00013.) NBC Sports' promotion of the broadcasts was typically limited to a "lead-in" voiceover or vignette created by the NBC Sports production department, which aired at the end of the preceding show and encouraged viewers to remain on the channel to watch the upcoming Disson broadcast. (NBC SOF ¶ 54.)
E. Baiul's Interactions with Steve Martin and Disson in 2011
In May 2011, Baiul and her publicist Sarah Hall met with Steve Martin regarding Martin potentially becoming Baiul's agent. (Disson SOF ¶ 9.) Martin is an agent for The Agency Group and has worked as an agent for approximately twenty years. ( Id. ¶ 8.) Baiul had previously been "retired for a bit" and was looking to "re-enter the skating world"; she had only performed in "a couple" paid skating shows between 2006 and 2011 (one in 2010, none in 2011). ( Id. ¶¶ 9-11.) During the meeting, Baiul and Martin discussed the fact that Martin, on behalf of Baiul, would find work for Baiul in skating shows in the United States. ( Id. ¶ 12.) Baiul and Martin discussed the possibility of Baiul performing in skating shows produced by Disson; Martin asked Baiul what she thought of Stephen Disson's shows, and Baiul indicated that "a lot of people like me were not doing his shows." (DeOreo Deel. Ex. G at 71-73.)
Following this meeting, as of June 2011, Martin understood Baiul to have hired him as her agent; Martin believed he had authority to negotiate skating deals for Baiul and to commit her to such deals. (Disson SOF ¶¶ 15-16.) According to Martin, he had a verbal agreement with Baiul but not a written contract. (See Markovich Deel. Ex. 73 at 98-104.) At this time, Baiul was aware that Martin was speaking to Disson and other skating show producers on her behalf, and never told Martin not to do so. (Disson SOF ¶ 18.) In fact, in July ...