On Tuesday in the Northern District of California, the plaintiffs in the lawsuit against Ancestry.com (Ancestry) for its purported misappropriation of yearbook photos filed an opposition to Ancestry’s motion to dismiss and motion to strike, claiming that Ancestry’s motions are based on misunderstandings of the plaintiffs’ allegations, that the plaintiffs sufficiently plead standing, and Ancestry’s remaining claims also fail.
In the class-action complaint, the plaintiffs claimed that Ancestry misappropriated personal information without their consent for advertising and other promotional purposes, specifically by utilizing the putative class’s yearbook photos and other related information. In the motion to dismiss, Ancestry contended that the lawsuit is “misguided” and should be dismissed because the plaintiffs purportedly consented long ago to the public distribution of these photographs without restriction. Ancestry pointed to local libraries and other online sources with access to these yearbook photographs. Ancestry also averred that the plaintiffs lack Article III standing, that they failed to state a claim upon which relief can be granted, and that the plaintiffs’ other claims also failed.
In the plaintiffs’ opposition, they allege that Ancestry’s motions to dismiss and strike “are based on two fundamental misunderstandings of Plaintiffs’ claims.” In particular, the plaintiffs proffer that Ancestry “misunderstands the rights and the harm at issue,” specifically their claim under California Civil Code § 3344 prohibiting the “knowing use of a person’s ‘name, voice, signature, photograph…for purposes of advertising or selling…without such person’s prior consent.’” However, the plaintiffs claim that Ancestry has “extracted Plaintiffs’ names, photographs as minors…and biographical information from yearbooks, then used Plaintiffs’ likenesses to create advertisements.” Thus, according to the plaintiffs, Ancestry profited from the misappropriation of their yearbook photographs. Moreover, the plaintiffs refute Ancestry’s argument that the plaintiff cannot claim harm because their yearbooks are not secret and they did not lose any money. However, the plaintiffs claim that “there is no requirement in § 3344 that the victim’s likeness be entirely private (even if that were possible), or that the victim sought to profit from their likeness in the past.” The plaintiffs contend that their consent as minors when the “internet barely existed” did not constitute consent to Ancestry’s usage of their photographs. Consequently, the plaintiffs claim that they have suffered injury and harm because of the denial of their statutory right.
The second misunderstanding, according to the plaintiffs, is that Ancestry allegedly misrepresented the plaintiffs’ claims regarding how Ancestry uses their likeness. The plaintiffs asserted that they “do not allege that Ancestry ‘hosted…third party content’ submitted by its users.” Instead, the plaintiffs noted that they claimed that Ancestry extracts various information from yearbooks and uses this information for advertising purposes.
Additionally, the plaintiffs averred that they have sufficiently alleged Article III standing because they have suffered economic injury from Ancestry’s unjust profits, lost potential earnings from the commercial use of their likeness, and suffered injury by having their statutory right to control the distribution and use of their likeness denied. Consequently, the plaintiffs asserted that Ancestry’s claims that the plaintiffs lack standing fails. Moreover, the plaintiffs proffer that the Newsworthy exception does not apply “because there is no legitimate public interest in Plaintiffs’ likenesses, and Ancestry is exploiting them for a commercial purpose,” and that Section 230 does not apply. The plaintiffs also alleged that their claims are not preempted by copyright. The plaintiffs reiterated that they have stated a claim for intrusion upon seclusion, sufficiently alleged statutory damages, and asserted that their restitution claim should not be struck.
As a result, the plaintiffs requested that the court deny Ancestry’s motions in whole or in part and for the plaintiffs to have leave to amend.