CHICAGO (Legal Newsline) – One of three class action claims against Ancestry.com will continue as a result of a federal judge’s recent ruling.
Chicago judge Virginia Kendall on Dec. 7 allowed lawyers to pursue recovery for alleged violation of the Illinois Right of Publicity Act, while tossing claims made under the Illinois Consumer Fraud and Deceptive Business Practices Act.
The lawsuit seeks to penalize Ancestry.com for using old yearbook photos without permission to advertise its pay service. Lawyers at Clifford Law Offices, Morgan and Morgan and Bursor & Fisher had defended their claims by pointing to a Seattle judge’s decision to let a similar case go forward against Whitepages.
Ancestry.com said it was protected from suit by the Communications Decency Act.
“Ancestry recasts Plaintiff’s claims on the ‘mere reposting’ of yearbook records, which is inconsistent with Plaintiff’s allegations that Ancestry uses those records and the likeness/identity to sell subscription services beyond his individual yearbook record,” Kendall wrote.
“These allegations, taken as true, do not establish that Ancestry is a ‘passive conduit’ that should receive immunity under the CDA. Plaintiff has alleged that Ancestry collected and organized records and subsequently used Plaintiff’s and the putative class members’ names, likenesses, and identities in these records they curated for commercial gain.”
Ancestry also argued an exemption to IPRA applied when the site used an individual’s identity to portray or impersonate that individual in an audio or visual work. Kendall said that exemption does not apply at this stage of the pleadings.
And despite plaintiff Sergio Bonilla’s yearbook coming from a Nebraska high school, Kendall found the Chicago court has jurisdiction. Bonilla now lives in Illinois.