Case 1:13-cv-02205-KBF Document 87 Filed 04/24/14 Page 1 of 38
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`3UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`--------------------------------------------------------------)(
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`OKSANA S. BAIUL,
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`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC#:
`DATE FILED:
`
`ADD ,., , ""' ...
`
`Plaintiff,
`
`-v-
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`13 Civ. 2205 (KBF)
`
`OPINION & ORDER
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`NBCUNIVERSAL MEDIA, LLC, et al.,
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`Defendants.
`
`------------------------------------------------------------- )(
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`OKSANA S. BAIUL and OKSANA, LTD.,
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`-v-
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`Plaintiffs,
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`13 Civ. 2208 (KBF)
`
`OPINION & ORDER
`
`STEPHEN DISSON, et al.,
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`Defendants.
`
`------------------------------------------------------------- )(
`KATHERINE B. FORREST, District Judge:
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`Before this Court are several lawsuits brought by Oksana Baiul ("plaintiff' or
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`"Baiul") against a variety of entities-including agents, networks, producers,
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`coaches, and accountants-that seek millions of dollars in damages for events that
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`took place as recently as within the last two years and as long ago as the last two
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`decades. This Opinion & Order relates to two of those lawsuits; the first suit arises
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`out of alleged commercial uses of Baiul's name and likeness to promote two skating
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`shows in which she never participated, while the second arises out of allegedly
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`defamatory statements about the first lawsuit as reported by two New York City-
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`Case 1:13-cv-02205-KBF Document 87 Filed 04/24/14 Page 2 of 38
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`area newspapers. Before the Court are motions for summary judgment seeking the
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`dismissal of these two suits.
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`For the reasons set forth below, these suits are wholly without merit,
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`defendants' motions for summary judgment are GRANTED, and these actions are
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`DISMISSED.
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`I.
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`PROCEDURAL HISTORY
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`On February 1, 2013, Baiul filed suit against NBC Universal Media, LLC and
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`NBC Sports Network, LP (the "NBC Defendants") and Disson Skating, LLC in New
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`York State Supreme Court, New York County, for violations of the Lanham Act, 15
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`U.S.C. § 1125(a), and New York Civil Rights Law§ 51, as well as common law fraud
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`and negligent misrepresentation (hereinafter, the "Lanham Act Action"). (Lanham
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`Act Action Notice of Removal, Ex. B iii! 28-61, ECF No. 1.)1 The Lanham Act Action
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`was removed by Disson Skating, LLC to this Court on April 3, 2013. (Id. iii! 1-4.)
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`On February 26, 2013, Baiul2 filed suit against Stephen Disson and Disson
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`Skating, LLC (the "Disson Defendants") in New York State Supreme Court, New
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`York County, for libel (hereinafter, the "Libel Action"). (Libel Action Notice of
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`Removal, Ex. B iii! 46-221, 13 Civ. 2208, ECF No. 1.) The Libel Action was removed
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`by the Disson Defendants on April 3, 2013 (ML_ irii 1-7), and this Court accepted it as
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`related to the Lanham Act Action on April 8, 2013.
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`1 Unless otherwise specified, all ECF references in this Opinion correspond to the docket in the
`Lanham Act Action, 13 Civ. 2205.
`2 Though both Oksana S. Baiul and "Oksana Ltd." are named as plaintiffs in this action, the Court
`hereinafter refers to both interchangeably as either "Baiul" or "plaintiff' for the sake of simplicity.
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`2
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`Case 1:13-cv-02205-KBF Document 87 Filed 04/24/14 Page 3 of 38
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`By order dated May 1, 2013, fact discovery in both actions was scheduled to
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`close on August 30, 2013. At a status conference on August 29, 2013, plaintiffs
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`counsel stated, for the first time, his desire to amend the complaints in both actions.
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`Following motions to amend the complaints pursuant to Rule 15, the Court granted
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`plaintiffs motion to amend the complaint in the Libel Action on consent in light of
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`the fact that the only change to be made was a change to the damages amount listed
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`in the complaint that had been previously provided to the Disson Defendants in
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`discovery. (9/24/13 Order, 13. Civ. 2208, ECF No. 25.) The Court denied plaintiffs
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`motion to amend in the Lanham Act Action because, "[o]n a substantive level, such
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`amendment would be futile as the allegations set forth in the proposed amended
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`complaint fail to allege sufficient facts to support a claim of successor liability" and
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`"the amendment comes at too late a stage in these proceedings" such that
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`defendants would be prejudiced. (9/24/13 Order, ECF No. 29.)
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`On October 24, 2013, defendants in both actions moved for summary
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`judgment seeking dismissal of the operative complaints. Plaintiff opposed the
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`motions, a and the motions became fully briefed on December 16, 2013. 1
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`II.
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`FACTS
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`In support of their motion for summary judgment, the NBC Defendants
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`submitted a statement of material facts pursuant to Local Civil Rule 56.1 ("NBC
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`:i Because plaintiff failed to timely oppose the motions or to otherwise comply with the Court's rules
`or the Local Civil Rules of this District, the Court only accepted certain filings in opposition to these
`motions. (See 12/4/13 Order, ECF No. 67; 12/5/13 Order, ECF No. 68.)
`4 Three weeks after the motions for summary judgment became fully briefed, plaintiff again moved
`for leave to file an amended complaint in the Lanham Act Action. The Court again denied plaintiffs
`motion as untimely. (1/6/14 Order, ECF No. 86.)
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`SOF") (ECF No. 43), a response to Baiul's statement of additional facts pursuant to
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`Local Civil Rule 56.1 ("NBC RSOF") (ECF No. 82), and declarations from, inter alia,
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`Chelley Talbert ("Talbert Deel." and "Talbert Supp. Deel.") (ECF Nos. 34, 81). The
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`Disson Defendants also submitted a statement of material facts pursuant to Local
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`Civil Rule 56.1 ("Disson SOF") (ECF No. 44), 5 a response to Baiul's statement of
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`additional facts pursuant to Local Civil Rule 56.1 ("Disson RSOF") (ECF No. 79),
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`and declarations from, inter alia, Matthew DeOreo ("DeOreo Deel." and "DeOreo
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`Supp. Deel.") (13 Civ. 2208, ECF Nos. 36, 58). Subject to the limitations imposed by
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`the Court in light of multiple confusing and untimely filings, 6 Baiul submitted
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`oppositions and statements of additional material facts pursuant to Local Civil Rule
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`56.1 with respect to both the NBC Defendants ("Baiul-NBC SOF") (ECF No. 69) and
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`the Disson Defendants ("Baiul-Disson SOF") (ECF No. 62), as well as a declaration
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`from, inter alia, Raymond Markovich ("Markovich Deel.") (ECF No. 62-1).
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`Unless otherwise noted, there is no genuine dispute7 as to the following
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`material facts.s
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`5 Many of the filings by the Disson Defendants and Baiul in support of and in opposition to the
`instant motions were filed in both the Lanham Act Action and the Libel Action (and often more than
`once in each action). For the sake of simplicity, the Court cites to only one copy of these filings in
`this Opinion.
`6 These issues are described in further detail in the Court's December 4 and 5, 2013 orders. (See
`ECF Nos. 67-68.)
`7 The Court notes that many of Baiul's "objections" to defendants' statements of material facts are
`merely argument-assertions that certain facts should not be credited, are irrelevant according to
`counsel's understanding of the law, or must be read in the context of other facts that are either
`beside the point or are flatly contradicted by the record. This approach is insufficient to create
`genuine issues of material fact as to these statements. See Hicks v. Baines, 593 F.3d 159, 166 (2d
`Cir. 2010) ("[M]ere conclusory allegations or denials ... cannot by themselves create a genuine issue
`of material fact where none would otherwise exist.") (citations and internal quotation marks
`omitted).
`8 The Court notes that Baiul does not oppose the vast majority of the facts put forth by the NBC
`Defendants and the Disson Defendants in the manner prescribed by the local rules of this District
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`4
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`A.
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`The NBC Defendants
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`NBC Sports is the sports division of the NBCUniversal Media, LLC television
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`network. (NBC SOF iJ 1.) NBC Sports broadcasts a diverse array of sports
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`programming, and produces or co-produces hundreds of hours of original sports
`programming a year. (Id. irir 2-3.) NBC Sports sells hundreds of hours of broadcast
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`time annually to third-party producers, so that they can air their sports
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`programming on the NBC broadcast television network ("NBC") or the NBC Sports
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`channel. (Id. ii 4.) NBC Sports airs over nine thousand hours of sports
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`programming annually on NBC and the NBC Sports channels combined. (Id. ii 5.)
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`Advertising for programming produced by NBC Sports is one of the primary sources
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`of revenue for NBC Sports. (Id. iJ 6.)
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`B.
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`The Disson Defendants
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`Disson Skating, LLC ("Disson"), organized under the laws of Virginia, is a
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`third-party producer that purchases broadcast time from NBC Sports to air pre-
`packaged programming on NBC. (NBC SOF ir 12; Disson SOF ii 4.) Disson
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`produces, among other things, figure skating shows, which have aired on NBC,
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`CBS, ESPN, USA, Bravo, Hallmark Channel, TBS, Style, and Ovation. (NBC SOF
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`iii! 13-14.) Stephen Disson is a skating producer and principal of Disson. (Disson
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`SOF iJ 3.) Disson came into existence in March 2012; prior to March 2012, and at
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`(even in the later, untimely filings that the Court has reviewed but determined not to consider for
`purposes of these motions). See Local Civil Rule 56.l(b) ("The papers opposing a motion for
`summary judgment shall include a correspondingly numbered paragraph responding to each
`numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs
`containing a separate, short and concise statement of additional material facts as to which it is
`contended that there exists a genuine issue to be tried."). Accordingly, these facts are deemed
`admitted for the purposes of these motions. See Local Civil Rule 56.1 (c).
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`the time of the events relevant to the Lanham Act Action, a separate limited
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`liability company called Disson Skating, LLC of Pennsylvania ("Disson PA") was in
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`operation. (Disson SOF ~~ 4-5, 7.)9
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`The format for a Disson figure skating show includes figure skating
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`performances by a number of Olympic, world, or national figure skaters and a live
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`musical act. (NBC SOF ~ 15.) Disson figure skating shows are taped before a live
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`ticket-buying audience for later broadcast on a national television network. (Id. ~ir
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`16-17.) Disson has purchased broadcast time from NBC Sports to broadcast its
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`figure skating shows on NBC since 1989. (Id. ~ 18.)
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`C.
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`Oksana Baiul
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`Baiul is a world famous figure skater who won the 1993 World
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`Championship, Ladies Figure Skating and became the 1994 Olympic Gold Medalist
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`in Ladies Figure Skating. (Disson SOF ir 1.) According to Baiul, she is "the highest
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`figure skater who's been on TV and my Olympics were the highest rated Olympics."
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`(DeOreo Deel. Ex. G at 382.) Baiul notes that she has "a title given to me by the
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`media queen of the ice," and she considers herself a "superstar," and a "global
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`entertainer." (Id. Ex. G at 382, 424.)
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`"Oksana Ltd." is a Pennsylvania corporation that is 100% owned by Baiul; it
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`is the legal entity that has and continues to be used by Baiul for some or all of her
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`contracts and business. (Disson SOF ir 2.)
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`9 For the sake of simplicity, the Court refers to both Disson entities as "Disson" herein. In light of
`the Court's holdings in Sections IV and V, infra, the Court need not reach the issue of successor
`liability in order to dismiss the complaints in both actions.
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`D.
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`The 2010 Time-Buy Between NBC Sports and Disson
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`When selling broadcast time to third-party producers, NBC Sports frequently
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`enters into "time-buy agreements" with the third-party producer. (NBC SOF iJ 7.)
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`A time-buy agreement is when a third-party producer purchases time to broadcast
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`its show on an NBC network and takes on the responsibility of production,
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`marketing, and sale of the program (hereinafter, a "Time-Buy"). (Id. ii 8.)
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`In Time-Buys, the third-party producer recoups its investment by selling
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`advertising to insert in the program and then retaining the proceeds of those sales.
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`(Id. ii 9.) Ratings from shows broadcast under Time-Buy agreements do not factor
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`into overall network ratings, though the shows may contain a few minutes of on-air
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`promotion for future NBC telecasts during a two-hour show. (Id. ii 10; Baiul-NBC
`SOF ir 70.) Third-party producers who have entered into a Time-Buy are required
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`to submit commercials and advertisements to NBCUniversal's standards
`department 72 hours before a broadcast. (NBC SOF ir 12.)
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`Disson and NBC Sports entered into a Time-Buy agreement dated March
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`2010, which was amended on September 16, 2010 (the "2010 Time-Buy"). 10 (Id. ii
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`19.) The 2010 Time-Buy covered Disson's purchase of broadcast time for the 2010-
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`2011 and 2011-2012 seasons. (Id. iJ 20.) Disson contracted to purchase a minimum
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`of sixteen hours of broadcast time in both the 2010-2011 and 2011-2012 seasons,
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`which corresponded to at least eight, two-hour figure skating shows. (Id. iii! 21-23.)
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`Disson agreed to pay NBC Sports $400,000 per two-hour show, regardless of the
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`10 The Court rejects Baiul's repeated characterizations of the 2010 Time-Buy as a "co-production"
`agreement as lacking both a factual and legal basis.
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`identity of the figure skaters or musical acts that actually performed in each show.
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`(Id. iJiJ 24-27.) The 2010 Time-Buy was amended to add a ninth one-hour show in
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`the 2010-2011 season at an additional cost to Disson of $200,000. (Id. iJ 28.)
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`Under the 2010 Time-Buy, Disson was responsible for all elements of
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`production of the live figure skating show, including taping the show for television
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`broadcast. (Id. iii! 29-31.) Disson represented and warranted to NBC Sports that it
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`had obtained the necessary rights for the performances, including the featured
`figure skater talent and music. (Id. ir 38.) Disson hired IMG, an independent
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`contractor, to produce the shows; IMG was also responsible for the post-production
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`work on the taped shows. (Id. iii! 32-33.) Aside from payment of on-air talent by
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`NBC Sports, Disson was responsible for all other production costs, expenses, and
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`liabilities of the figure skating shows covered by the 2010 Time-Buy. (Id. iJ 34;
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`Markovich Deel. Ex. 35 at NBCU 00009.) Disson selected the figure skaters that
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`appeared in each figure skating show, and conducted all negotiations in connection
`with their appearance. (NBC SOF irir 35-36.) NBC Sports was not a party to
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`Disson's agreements with either the figure skaters, IMG, or the venues. (Id. iJ 37.)
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`Once post-production work was complete, Disson (or IMG) delivered a tape of
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`the show to the NBC Sports production department on the Thursday or
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`Friday before the scheduled weekend broadcast. (Id. ii 39-40.) A member of the
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`NBC Sports production department reviewed the tape to confirm it was appropriate
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`for air; this included confirming that the tape complied with production
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`requirements, such as requisite audio quality and appropriate number and length of
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`commercial spots, and fact-checking to ensure any on-screen graphics were
`accurate. (Id. ir 41.)
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`Disson was entitled to sell advertisements to insert in each program in the
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`form of commercials, billboards, and vignettes, without any limitations as to price.
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`(Id. iii! 42-43.) Disson retained all proceeds from any advertisements, commercial
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`elements and sponsorships it sold. (Id. if 44.) The fee Disson paid NBC Sports was
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`not dependent on Disson's ability to sell advertising for any particular broadcast or
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`on any other variable. (Id. ii 46.) NBC Sports did not participate in any
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`conversations with advertisers, review any agreements Disson reached with
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`advertisers, or otherwise participate in any attempts to solicit advertisers for any
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`broadcasts covered by the 2010 Time-Buy. (Id. ii 47.)
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`One to two minutes during the two-hour broadcast were reserved for the
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`insertion of an announcement for upcoming NBC network telecasts. (Id. ii 48.) One
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`to two minutes were also reserved for the insertion of commercials sold by
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`local NBC affiliates (which were not sold against the content of the program). (Id. if
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`49.) NBC Sports did not discuss the content of the Disson programs with the local
`stations. (Id. ir 50.)
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`NBC Sport's only commitment to promote the broadcasts was "on-air in NBC
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`Sports programming in accordance with NBC Sports' usual and customary practices
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`and consistent with NBC Sports' promotion of similar sports programming." (Id. if
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`53; Talbert Deel. Ex. 5 at NBCU 00013.) NBC Sports' promotion of the broadcasts
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`was typically limited to a "lead-in" voiceover or vignette created by the NBC Sports
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`production department, which aired at the end of the preceding show and
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`encouraged viewers to remain on the channel to watch the upcoming Disson
`broadcast. (NBC SOF ir 54.)
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`E.
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`Baiul's Interactions with Steve Martin and Disson in 2011
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`In May 2011, Baiul and her publicist Sarah Hall met with Steve Martin
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`regarding Martin potentially becoming Baiul's agent. (Disson SOF iJ 9.) Martin is
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`an agent for The Agency Group and has worked as an agent for approximately
`twenty years. (Id. ir 8.) Baiul had previously been "retired for a bit" and was
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`looking to "re-enter the skating world"; she had only performed in "a couple" paid
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`skating shows between 2006 and 2011 (one in 2010, none in 2011). (Id. iii! 9-11.)
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`During the meeting, Baiul and Martin discussed the fact that Martin, on behalf of
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`Baiul, would find work for Baiul in skating shows in the United States. (Id. iJ 12.)
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`Baiul and Martin discussed the possibility of Baiul performing in skating shows
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`produced by Disson; Martin asked Baiul what she thought of Stephen Disson's
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`shows, and Baiul indicated that "a lot of people like me were not doing his shows."
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`(DeOreo Deel. Ex. G at 71-73.)
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`Following this meeting, as of June 2011, Martin understood Baiul to have
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`hired him as her agent; Martin believed he had authority to negotiate skating deals
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`for Baiul and to commit her to such deals. (Disson SOF iiir 15-16.) According to
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`Martin, he had a verbal agreement with Baiul but not a written contract. (See
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`Markovich Deel. Ex. 73 at 98-104.) At this time, Baiul was aware that Martin was
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`speaking to Disson and other skating show producers on her behalf, and never told
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`Martin not to do so. (Disson SOF ~ 18.) In fact, in July 2011, Baiul expected that
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`Martin would be receiving offers from skating show producers for her to perform in
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`such skating shows. (Id. ii 19.)
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`On June 22, 2011, Martin emailed Stephen Disson and indicated that he was
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`working with Baiul, who would be skating in two skating shows that were being
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`produced by two other producers. (Id. ~~ 20-21.) During a conversation on July 12,
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`2011, Martin told Disson that he had signed Baiul as a client and that Baiul wanted
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`to know if he had space for her in any of his NBC skating shows. (Id. ii 22.) During
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`the same conversation, Disson offered Martin a deal for Baiul to perform in two of
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`Disson's upcoming shows under the 2010 Time-Buy-a show with the band Styx in
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`December 2011 in Greenville, South Carolina (the "Improv-Ice Show"), and a show
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`with the recording artist Kenny Gin January 2012 in the Seattle, Washington area
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`(the "Moments of Love Show") (collectively, the "Disson Shows"). (Id. ~ 23.) Disson
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`and Martin discussed many of the details of the offer during this conversation, and
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`Disson sent a follow-up email later that day to Martin setting forth many of these
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`same details. (Id. irir 24-25.) Martin forwarded this email to Baiul the next day,
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`July 13, 2011, and explained: "As we discussed, here are 2 more specials, these from
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`Steve Disson ... Both are offering $10,000+expenses. If you'd like me to arrange a
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`call w/Steve, I'd be happy to." (DeOreo Deel. Ex. L.) According to Baiul, this email
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`attached two documents containing certain background information about the
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`Disson Shows, and which used Baiul's name and likeness; according to Martin, he
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`did not recall opening the attachments to this email. (See Disson SOF ii~ 50-51.)
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`According to Martin, Baiul accepted this offer; according to Baiul, she had
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`additional questions about the amount of the offer. (Id. ii 27; Baiul-Disson SOF ii
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`27.) Martin communicated his belief that Baiul had accepted the offer to Disson; in
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`a July 15, 2011 email, Martin stated that Baiul was "ok with the offers and wants to
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`have a creative conversation with you, as you +I [sic] discussed." (DeOreo Deel. Ex.
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`E. at 28-29, Ex.Nat DISSON 000826.) Subsequently, on July 18, 2011, Martin's
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`assistant spoke to Baiul and confirmed that she had accepted Disson's offer;
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`Martin's assistant, who was authorized to convey this information on Martin's
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`behalf, emailed Disson that day and stated: "I spoke to Oksana, she has confirmed
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`she is good for both the NBC dates. And confirmed she spoke to both yourself and
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`Lee Ann. I will follow up with the contracts shortly." (DeOreo Deel. Ex. 0 at
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`DISSON 000285, Ex. Pat 19-21, 52-53, 60-64.) Baiul and Disson also spoke on July
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`18, 2011 and discussed the shows; after the call, Disson emailed Martin and stated
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`''Just spoke at great length with Oksana and we are good to go here." (DeOreo Deel.
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`Ex. Cat 173-180, Ex. 0 at DISSON 000286.)
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`On July 20, 2011, Baiul emailed Martin that she was sick and could not
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`perform in any of the shows. (Disson SOF ii 38.) Baiul stated: "Steve I am werry
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`sorry I am werry suck I can't do this shows I am suck with my colitias. So sorry."
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`(DeOreo Deel. Ex. Q.) Martin responded: "I'm so sorry to hear you're not feeling
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`well. What shows are you referring to? Steve Dis sons [sic] shows or all of them?
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`Hope you feel better." (Id.) In an email to Baiul dated August 7, 2011, Martin
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`stated: "I've notified the 3 producers of the skating events that you will not be
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`Case 1:13-cv-02205-KBF Document 87 Filed 04/24/14 Page 13 of 38
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`appearing for them, due to a health issue. At this point, I don't feel that myself or
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`The Agency Group can effectively represent you. If any inquiries come to us, we
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`will pass them along directly to you. I hope your health improves and wish you the
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`best." (Id. Ex. S.)
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`Thereafter, on August 8, 2011, Martin emailed Disson and stated: "Please be
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`aware that Oksana has informed me that she not [sic] going to perform at any of the
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`skating shows she's agreed to, due to health reasons. Also, we are no longer
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`representing Oksana. If you have any questions, feel free to call. Sorry for all the
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`inconvenience." (Id. Ex Rat 2.) This was the first time Disson learned that Baiul
`was not going to be in the Disson Shows. (Disson SOF ir 42.) In response to
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`Disson's requests for an explanation as to why Baiul was no longer interested in
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`participating in the Disson Shows, on August 12, 2011, Baiul stated in an email:
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`"Steve the reason is I don't want to skate anymore!" (DeOreo Deel. Ex. Tat 1.)
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`F.
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`The 2011-2012 Disson Skating Series
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`The eight shows in the 2011-2012 Disson skating series were filmed live from
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`September 2011 through January 2012 and were broadcast on NBC through
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`February 2012. (NBC SOF ii 70.) Over three dozen different figure skaters
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`participated as skaters or hosts in the events, including U.S. Olympic gold
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`medalists Brian Boitano, Kristi Yamaguchi, Peggy Flemming, and Sarah Hughes.
`~ ir 1i.)
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`During the 2011-2012 skating show season, Disson retained an independent
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`publicist, Lynn Plage, to promote its live events and the television broadcasts. (Id.
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`ir 51.) Plage acted as a liaison between Disson and NBC Sport's communications
`department. (Id. ir 52.)
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`In April 2011, Disson sent the NBC Sports Programming department a
`preliminary plan for the 2011-2012 series. (Id. ir 72.) The one-page plan included
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`the location of the live venue, broadcast date and time, and the proposed host and
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`host fees for each show-it did not include the identity of any figure skater or
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`musical act. (Id. iii! 73-7 4.) Disson never sent a comprehensive list of figure skaters
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`or musical acts for the 2011-2012 season to the NBC Sports programming
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`department. (Id. if 75.) NBC Sports first received comprehensive participant lists
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`from Plage (on October 21, 2011); Plage sent those lists solely to the NBC Sports
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`communications department. (Id. if 76; Talbert Deel. Ex. 13.)
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`NBC Sports did not select, correspond with, or contract with the figure
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`skating or musical talent that Disson engaged to perform in any show. (NBC SOF if
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`60.) NBC Sports did not choose, communicate with, or collect any proceeds from the
`venues. (Id. ir 61.) NBC Sports played no role in the production of any show. (Id. if
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`62.) NBC Sports did not participate in the advertising or promotion of, or collect
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`any revenue from, the live events, ticket sales, or merchandise. (Id. if 63.) NBC
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`Sports did not solicit or engage with sponsors or advertisers for any broadcast or
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`receive any revenue for advertising or sponsorships sold against the broadcasts.
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`The venues hired by Disson paid for and handled all advertisements
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`associated with the Disson Shows; none of those advertisements (which Disson
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`Case 1:13-cv-02205-KBF Document 87 Filed 04/24/14 Page 15 of 38
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`reviewed and approved) included Baiul's name. (Disson SOF iii! 56, 58, 74, 107-
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`110.) On July 14, 2011, Disson sent the BI-LO Center, the venue for the lmprov-lce
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`Show, a background information packet that listed Baiul as a "Suggested Skater."
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`(Id. ii 86.) There is no evidence in the record to suggest that individuals at the BI-
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`10 Center sent this packet or any other materials referencing Baiul to anyone in
`promoting the lmprov-lce Show. (Id. irir 87-89.)
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`On July 21, 2011, after Baiul had committed to the lmprov-lce Show but
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`before Disson learned that she would not be participating, Disson emailed Jackie
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`Dyson at Zenith Media a proposal for the company Stouffer's to be a title sponsor of
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`the lmprov-lce Show (the "Stouffer's Proposal"). (Disson SOF ii 76.) The Stouffer's
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`Proposal included Baiul's name and likeness. (Id. i! 77.) On August 2, 2011, Dyson
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`emailed Disson that Stouffer's was not interested in becoming a title sponsor for the
`lmprov-lce Show. (Id. ir 78.)
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`On July 21, 2011, after Baiul had committed to the lmprov-lce Show but
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`before Disson learned that she would not be participating, Disson emailed Tamara
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`Rabi at Optimedia a proposal for the company Stride Rite to be a title sponsor of the
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`Improv-lce Show (the "Stride Rite Proposal"). (Id. ii 81.) The Stride Rite Proposal
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`also included Baiul's name and likeness. (Id. i! 82.) On July 25, 2011, Rabi emailed
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`Disson that Stride Rite was not interested in becoming a title sponsor for the
`lmprov-lce Show. (Id. ir 83.)
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`According to Baiul, the radio stations Magic 98.9 and ROCK101 used Baiul's
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`name on their websites in order to promote the lmprov-lce Show. (Baiul-NBC SOF
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`Case 1:13-cv-02205-KBF Document 87 Filed 04/24/14 Page 16 of 38
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`irir 9(3), (4); Markovich Deel. Exs. 9, 10.) Baiul cites no evidence that either Disson
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`or the NBC Defendants had any involvement in the posting of Baiul's name on
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`these websites. (NBC SOF ir 152; Disson SOF ir 57.)
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`G.
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`The February 2, 2012 Press Release
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`To inform other media outlets about the Disson broadcasts, the NBC Sports
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`communications department prepared an informational press release about each
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`program and posted it on NBCUniversal's Media Village a few days before each
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`broadcast. (Id. ir 65.)11 Media Village is a website for editorial use by United
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`States-based media-it includes news releases about company-wide topics, such as
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`NBCUniversal's year-to-date performance, and information about upcoming
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`broadcasts. (Id. ir 66.) Other media outlets (such as local newspapers) rely on
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`Media Village to create and report on television listings. (Id.) Media Village is not
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`targeted to the television viewing audience or the general public; in fact, full access
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`to the site requires registration with United States media credentials. (Id. iii! 67,
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`69.) Media Village does not contain episode guides, video clips, full schedule line-
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`ups, merchandise sales, or social media interaction. (Id. if 68.)
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`11 Baiul argues that all statements of material fact (including this one) that are based on the
`declarations of Justine DeMaio and Adam Freifeld, which were submitted by the NBC Defendants in
`support of their motions for summary judgment, should be stricken and disregarded because these
`individuals were not produced for depositions in response to a notice of deposition served on the NBC
`Defendants on July 29, 2013. (Baiul NBC SOF if 2.) This argument is rejected. Baiul's July 29,
`2013 deposition notice required the NBC Defendants to designate and produce an individual to
`testify on behalf of the noticed entities, "NBCUniversal Media LLC" and "NBC Sports Network L.P.,"
`pursuant to Federal Rule of Civil Procedure 30(b)(6) with respect to certain identified categories.
`(See Markovich Deel. Ex. 1.) The NBC Defendants did so by designating and producing Jonathan
`Miller, President of NBC Sports Programming. (See Talbert Supp. Deel. Exs. 1, 2.) Baiul never
`noticed declarations for Freifeld or DeMaio, although each was identified by the NBC Defendants in
`their June 17, 2013 Rule 26 disclosures. (See id. Ex. 3.) These declarations are thus properly
`considered by the Court on this motion. See Fed. R. Civ. P. 56(c)(4); see also United Magazines Co. v.
`Murdoch Magazines Distrib., Inc., 353 F. Supp. 2d 433, 442 n.8 (S.D.N.Y. 2004).
`
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`Case 1:13-cv-02205-KBF Document 87 Filed 04/24/14 Page 17 of 38
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`From October 2011 through February 2012, Justine DeMaio was an employee
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`with the NBC Sports communications department, whose responsibilities included
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`preparing informational press releases for Media Village. (Id. if 77.) On October 21,
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`2011, Plage emailed DeMaio to request DeMaio's assistance in coordinating radio
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`interviews to promote upcoming broadcasts. (Id. if 78.) Plage attached multi-page
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`fact sheets ("Fact Sheets") for the shows to her October 21 email, which listed: (a)
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`the name of the show; (b) a brief description of each show; (c) the location of the live
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`event; (d) a list of the participating figure skaters with brief biographical
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`information; (e) the identify and brief biography of the hosts; and (f) the musical
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`guest. (Id. irir 79-80.) Plage did not attach a fact sheet for one of the eight shows
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`and attached two different versions of a fact sheet for another. (Id. if 81.) When
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`DeMaio followed up with Plage on the missing information, Plage sent
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`back a press release on the missing show but noted that one of the figure skaters
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`that was identified therein as performing (not Baiul) had not appeared in the show.
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`(Id. ii 82.) Plage explicitly instructed DeMaio to "take her name out." (Id. if 83.)
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`According to DeMaio, it was her expectation that Plage would continue to notify her
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`of any other inaccuracies in the Fact Sheets. (Id. if 84.)
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`Plage's October 21, 2011 email attached a Fact Sheet for the season's final
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`show, the Moments of Love Show. (Id. if 85.) The Fact Sheet's description of the
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`event stated: "WHAT: Pandora® Unforgettable Moments of Love on Ice
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`brings romance to the ice rink. Olympic, World and National medalists, led by
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`Ekaterina Gordeva and Oksana Baiul, perform numbers to love-inspired music
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`Case 1:13-cv-02205-KBF Document 87 Filed 04/24/14 Page 18 of 38
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`performed live to entertain the audience." (Id. ii 86.) The Fact Sheet also included
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`Baiul second among the list of ten participating figure skaters and identified her as
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`"1994 Olympic Champion" and "1993 World Champion." (Id. ii 87.)
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`On January 31, 2012, shortly before the February 4, 2012 scheduled
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`television broadcast of the Moments of Love Show, DeMaio and Plage exchanged