In an interesting case with sports industry ties, U.S. Magistrate Judge Laurel Beeler on March 1 dismissed a lawsuit brought by two California residents against Ancestry.com. The litigation invokes image-rights cases around EA Sports video games and cites precedent involving Major League Baseball highlights and a plaintiffs’ rights to privacy, if not compensation.
Lawrence Abraham and Meredith Callahan attended high school in the late 1990s, when yearbooks were physical books. They insist that Ancestry violated their right of publicity by using, without their consent and without paying them, decades-old yearbook names, photographs, likenesses and student activities (including sports and clubs). Online reproductions of these materials appear in Ancestry’s yearbook database. Abraham and Callahan hope to see their case certified as a class action on behalf of other Californians whose yearbook identities are now online.
Ancestry is the world’s largest for-profit genealogy company. It has acquired numerous databases, including birth records, marriage listings, census filings, photographs of grave sites and more than 730 million records from more than 450,000 school yearbooks. Ancestry sells access to subscribers. The company offers a 14-day free trial and retails different subscription plans, including $99 for six months and $24.99 on a month-to-month basis. Ancestry, Judge Beeler explains, doesn’t try to obtain consent from those depicted in the yearbooks.
Arguably similar to college athletes who sued over the inclusion of their likenesses in EA video games, Abraham and Callahan regard the use of their likeness as causing them financial injury. They maintain, “Ancestry exploits and profits from their likeness by obtaining paid subscribers,” and the plaintiffs “have lost potential earnings from the commercial use of their likenesses.”
Judge Beeler wasn’t convinced. She stressed that “information in the yearbook database is not private… it is public yearbook information distributed to classmates (and ultimately to Ancestry).” The judge distinguished Ancestry’s use of a profile from that of Facebook in Fraley v. Facebook. In that case, Facebook generated advertisement revenue through users’ “likes” of products. After “liking,” users’ names and photos were then included in advertisements targeted to their friends. With Ancestry, the plaintiffs aren’t featured in advertisements.
The plaintiffs can file an amended complaint within 21 days.
Judge Beeler also emphasized that Ancestry “did not create the underlying yearbook records…. [It] instead offered data in a form—a platform with different functionalities—that did not alter the content.” In that regard, Ancestry’s role was much less transformative than that of EA, when video-game company used college athletes’ intellectual property. Whereas EA programmers designed video game avatars of real life players, Ancestry simply organized already published yearbook information and placed those materials online. This is significant, Judge Beeler explained, since Section 230 of the Communications Decency Act immunizes website operators from liability for third-party content.
Yet the judge drew from a baseball case to deny Ancestry’s argument that its content constitutes protected free speech. Ancestry had claimed yearbook data is of interest to the public. To bolster that argument, Ancestry cited several cases, including Gionfriddo v. MLB, a 2001 case that involved four retired baseball players (Al Gionfriddo, Pete Coscarart, Dolph Camilli and Frankie Crosetti) who had played in 1930s and 1940s.
The four players unsuccessfully sued MLB for violating their right of publicity under a similar theory to the one brought against Ancestry: MLB used video, photographs, stats and names of the players in various productions, including in TV shows like This Week in Baseball and on MLB’s website, without consent or compensation. California associate justice Mark Simmons held for baseball, in part because the players’ material constituted “fragments from baseball’s mosaic” and part of “baseball’s history.” He also stressed that baseball is “followed by millions of people” who possess “an enduring fascination in the records set by former players and in memorable moments from previous games.” Judge Beeler found the Ancestry case very different. She stressed “decades-old yearbooks are not demonstrably an issue of public interest.”