CHICAGO (Legal Newsline) – Class action lawyers hoping to take a bite out of Ancestry.com for using old yearbook photos say a Seattle judge’s recent decision boosts their case.
A team of lawyers from firms like Clifford Law Offices, Morgan and Morgan and Bursor & Fisher on May 17 notified the Chicago federal judge hearing their litigation against the website about what they think is a relevant decision reached a month earlier.
In that case, Judge John Coughenour denied Whitepages’ motion to dismiss a proposed class action. He found plaintiffs adequately pled that Ohio’s right of publicity law, which says one person can’t use another’s persona for a commercial purpose without written consent, applies.
The plaintiff in that case is also represented by Bursor & Fisher. In the Ancestry case, that firm and others say the site did not receive consent from the millions of Illinoisans whose names and photographs appear in its Ancestry Yearbook Database.
This collection is a selling point when Ancestry offers its membership services, the suit says.
The Ancestry case faces a motion to dismiss from the company, which says three similar lawsuits have already been thrown out.
Whitepages’ effort to have a likeness case dismissed failed before Judge Coughenour.
“Defendant argues that Plaintiff’s name, as a non-public person, could not have commercial value as a matter of law and, even if it could, Plaintiff did not plead adequate facts to establish its commercial value here,” his decision says.
“The Court disagrees. To assert a right of publicity claim, Plaintiff must only plead that there is some value in associating a good or service with her identity.”
Ancestry.com says Sergio Bonilla’s case does not establish personal jurisdiction in Chicago. Bonilla’s yearbook is from his high school in Nebraska and only 6% of yearbook records on Ancestry.com are from Illinois schools.
The company is also not headquartered in Illinois, it says.
“It is well established the operation of a universally available website – with ‘advertisements’ viewable by residents of the forum state – is insufficient for personal jurisdiction, even where forum state residents contend they were harmed,” the motion says.
Bonilla and his lawyers also fail to allege he’s been damaged, noting the decision a California dismissal says “Ancestry’s using the public profiles to solicit paying subscribers – standing alone – does not establish injury.”