Moves to Dismiss Yearbook Photo Misappropriation Suit

On Monday in the Northern District of California, and related entities and individuals filed a motion to dismiss the putative class action lawsuit against it claiming the company misappropriated their personal information and photographs for advertising and other promotional purposes. Ancestry claimed that this lawsuit is “misguided” and should be dismissed with prejudice.

Ancestry recounted that the plaintiffs “object that pictures and information from their school yearbooks is viewable on, and seek to advance a broad class action asserting right of publicity and privacy-based theories.” In response to the allegations the company purported that “the claims are intuitively ill-founded – like all individuals pictured in yearbooks, these plaintiffs long ago consented to public distribution of these photos without restriction. Indeed, the local libraries of each named plaintiff offer these same yearbooks for anyone to access, including online versions available with a few keystrokes. Numerous additional yearbook archives abound on the internet.”

The defendant moved to dismiss the complaint citing that the plaintiffs lack Article III standing and the complaint fails to state a claim upon which relief can be granted, especially because the aforementioned “common experience undermines plaintiffs’ supposed indignation over the possible viewing of their school photos.” Ancestry averred that the plaintiffs’ claims fail because they did not suffer any injury, such as mental anguish, as a result of the purported violations because these “yearbook excerpts are widely available.” 

The defendants noted that the plaintiffs only claimed that Ancestry provided access to these public records. Thus, according to the defendants, no harm “could plausibly result from the mere existence of plaintiffs’ records in Ancestry’s archive.” Ancestry claimed that the plaintiffs’ allegations under California Civil Code Section 3344 and the Unfair Competition Law (UCL) fail because the alleged conduct is under the “public affairs” exception, which purportedly “protects the type of information gathering for public distribution in which Ancestry engages” and these claims are preempted by Section 301 of the Copyright Act. Additionally, Ancestry stated that it is protected by immunity afforded in Section 230 of the Communications Decency Act. 

According to Ancestry, the plaintiffs cannot plausibly state a claim for intrusion upon seclusion because the “yearbook information at issue belies any suggestion it is ‘private.’” The defendant contended that this is public information for distribution and “possible regret over teen hairstyles notwithstanding, no reasonable person could be ‘highly offended’ by sharing a school portrait.” Furthermore, Ancestry added that no individual claim for unjust enrichment exists.

Ancestry is seeking to move the court to dismiss the complaint in its entirety with prejudice and to strike portions of the complaint including the plaintiffs’ request for statutory damages because the plaintiffs have allegedly failed to claim mental anguish, the plaintiffs’ restitution-based allegations because “an adequate remedy at law exists,” and the plaintiffs’ complaint “pursuant to California’s anti-SLAPP statute” because the defendants asserted that the lawsuit “arises from protected activity and plaintiffs cannot demonstrate a probability of prevailing on the merits.”

Ancestry is represented by Quinn Emanuel Urquhart & Sullivan, LLP. The plaintiffs are represented by Morgan & Morgan Complex Litigation Group as well as Benjamin R. Osborn.