# Fry v. Ancestry.com Operations Inc.

> District Court, N.D. Indiana · March 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10163747

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** March 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10163747

## How later opinions describe it (automated extraction)

- recognizing misappropriation and describing the history of the privacy torts

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

JASON FRY,

Plaintiff,

v. Case No. 3:22-CV-140 JD

ANCESTRY.COM OPERATIONS INC., et
al.,

Defendants.
OPINION AND ORDER
Ancestry.com1 uses the school yearbook photos and names of many people to advertise
its subscription-based genealogy website without the knowledge or consent of those depicted.
Jason Fry, an Indiana resident, is one such person. He brings the instant suit on behalf of himself
and other similarly situated Indiana residents, whose common law and statutory rights of
publicity have been violated by Ancestry’s use of their names and likenesses in its advertising.
Ancestry filed a motion to dismiss, arguing this Court does not have personal jurisdiction over
Ancestry, that Mr. Fry does not have standing to bring his claims, that he has failed to state a
claim, and that his claims fail due to several applicable statutory provisions. Therefore, the Court
DENIES Ancestry’s motion to dismiss (DE 18), finding the facts alleged, if true, support the
Court’s jurisdiction over Ancestry, Mr. Fry’s standing to bring his case, and the facial
sufficiency of his claims. The Court further finds Ancestry’s statutory arguments do not entitle it
to dismissal.

1 Mr. Fry has sued three related entities, and both parties refer to them collectively as Ancestry. This Court will
follow suit. At points, the Court refers to Ancestry.com in order to specify the website or genealogy part of the
Ancestry business. The Court does not intend to relieve any particular entity of liability by using the name
Ancestry.com.
A. Facts
Ancestry is a genealogy website and DNA testing business with broad popularity in the
United States and worldwide. This suit concerns Ancestry’s genealogy website, Ancestry.com.
Ancestry has compiled billions of records, including 730 million school yearbook photos. 33
million of these yearbook records correspond to Indiana schools. Ancestry encourages
Ancestry.com subscribers to use records to build their own interactive family trees, thereby

learning more about their relatives, living or dead. While technically a user can search for any
person, the intent of the Ancestry product is that users employ the records for genealogical
purposes, and most users search for persons they know or family members.
When a person visits Ancestry.com, a public landing page allows the visitor to search by
name and location for any person. The Ancestry website then delivers a list of yearbook photos it
believes may correspond to the person of interest. The results page also includes a pop-up
window that says, “There’s more to see” about the person of interest and encourages the visitor
to “Sign Up Now.” Clicking through the pop-up takes the visitor to a webpage where they can
select a paid subscription plan and begin their free trial. After such a search, Ancestry sends
targeted promotion emails teasing hints about the person of interest. These emails contain the

person of interest’s name and likeness. If the email recipient clicks on links contained within the
email, they are again prompted to sign up for a paid subscription plan. When using a free trial
membership, a visitor can view the full records of the person of interest including their school
yearbook photos. Ancestry hopes that upon enjoying the benefits of a free trial, the visitor will
sign up for a paid subscription, so the free trial itself is also a form of advertising.
Mr. Fry, an Indiana resident, was one such person of interest. Mr. Fry is not a subscriber
or user of Ancestry, but his Indiana high school yearbook photos are available for view on
Ancestry to those who have searched for him. Mr. Fry did not consent to his likeness being used
for advertising, nor does he endorse Ancestry’s services. Mr. Fry finds the aforementioned uses
of his name and likeness in Ancestry’s advertisements objectionable, as it encroaches on his right
of publicity and discovering that his likeness might so be used has caused him psychological
stress. Mr. Fry has brought suit claiming that Ancestry violated Indiana’s right of publicity
statute, Ind. Code § 32-36-1, et. seq., (“the Indiana statute”) and his common law right of

publicity. Ancestry now moves to dismiss Mr. Fry’s claims.
B. Legal Standard
A 12(b)(6) motion challenges the sufficiency of the complaint’s allegations. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007). To satisfy the federal pleading requirements, the
complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When ruling on a motion to
dismiss under Rule 12(b)(6), the Court must “accept all well-pleaded allegations in the complaint
as true and draw all reasonable inferences in favor of the plaintiff.” Forseth v. Vill. of Sussex,
199 F.3d 363, 368 (7th Cir. 2000). “While a plaintiff need not plead detailed factual allegations
to survive a motion to dismiss, she still must provide more than mere labels and conclusions or a

formulaic recitation of the elements of a cause of action for her complaint to be considered
adequate.” W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016). A plaintiff’s
claim may only be dismissed based on an affirmative defense under Rule 12(b)(6) if “the
plaintiff pleads itself out of court—that is, admits all the ingredients of an impenetrable defense.”
Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). Otherwise,
“plaintiffs need not anticipate and attempt to plead around all potential defenses.” Id.
C. Discussion
Ancestry argues this Court does not have specific personal jurisdiction because Indiana
represents a small portion of its business, and it does not target the forum when users residing in
Indiana access the website. The Court does not find this persuasive, as Ancestry purposely seeks
out nationwide business, including that in Indiana, and Mr. Fry’s suit arises from those contacts.
No unfairness arises from this Court’s exercise of personal jurisdiction. Further, when his

allegations are credited, Mr. Fry has standing to pursue his claims because his injuries are
sufficiently concrete. The Court also finds Mr. Fry’s likeness has commercial value, rendering
him a protected personality under the statute, and finds none of the statutory defenses raised by
Ancestry apply.
(1) This Court has personal jurisdiction over Ancestry.
Ancestry argues this Court lacks personal jurisdiction over it; Mr. Fry in turn argues
Ancestry has targeted the forum, and therefore, the Court has specific personal jurisdiction. Mr.
Fry gets the better of the argument. Specific jurisdiction “arises out of or relates to the
defendant’s contacts with the forum.” Daimler AG v. Bauman, 571 U.S. 117, 128 (2014).
“Specific personal jurisdiction is appropriate where (1) the defendant has purposefully directed

his activities at the forum state or purposely availed himself of the privilege of conducting
business in that state, and (2) the alleged injury arises out of the defendant’s forum-related
activities.” Tamburo v. Dworkin, 601 F.3d 693, 702 (7th Cir. 2010). “It is [the defendant]
reaching out to the residents of [the forum state], and not the residents reach back, that creates
the sufficient minimum contacts.” Illinois v. Hemi Grp. LLC, 622 F.3d 754, 758 (7th Cir. 2010).
When considering web businesses, the Court asks whether the defendant in some way targeted
the forum state’s market beyond simply operating an interactive website that is accessible from
the forum state. be2 LLC v. Ivanov, 642 F.3d 555, 558–59 (7th Cir. 2011). The targeting
requirement is met when the web-based business extensively markets and sells to residents
within the state. See uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 427 (7th Cir. 2010). Where
a company continuously and deliberately seeks a nationwide audience, there is no unfairness in
calling it to answer for its actions in any state where it does substantial business. Keeton v.
Hustler Mag., Inc., 465 U.S. 770, 781 (1984). Accordingly, the Court will assess Ancestry’s

purposeful availment of business in the state of Indiana and whether the injuries alleged arise out
of Ancestry’s Indiana-related activities.
The Court turns to the decisions of two sister district courts addressing the same issues
among the same parties for guidance. See Sessa v. Ancestry.com Operations Inc., 561 F. Supp.
3d 1008 (D. Nev. 2021); Bonilla v. Ancestry.com Operations Inc., 574 F. Supp. 3d 582 (N.D. Ill.
2021). As in Sessa, this Court finds that it “strains credulity that Ancestry would not know that,
by creating a commercial database of many millions of Americans” including records from an
estimated 33 million Indiana schools, it was targeting the market and thereby may be haled into
court in Indiana. 561 F. Supp. 3d at 1026. Ancestry held itself out to do business with Indiana
residents, specifically advertised to persons located in Indiana, and hoped its services would

become popular nationwide, including in Indiana. As Sessa found, “Ancestry has sought to build
a database with nationwide appeal by allegedly collecting as many yearbooks as possible from
across the country. Ancestry intentionally targeted all fifty states in doing so.” 561 F.Supp.3d at
1026. Though Ancestry protests that Indiana makes up a small amount of its business, that factor
is not dispositive, as the targeting inquiry does not require that the forum be one of special
interest—just significant contact. See uBID, 623 F.3d at 427–28 (web company could be haled
into Illinois where it sought to do business there and everywhere else). Further, one could
imagine ways Ancestry would limit that business if it did not seek to do business in Indiana.
When purchasing its yearbooks, it might say, “No Indiana schools, please!” and it might choose
not to send ad emails to those users whose IP addresses indicated they were located in Indiana.
Cf. Illinois v. Hemi Grp. LLC, 622 F.3d 754, 758 (7th Cir. 2010) (business “targeted to do
business” with forty-nine states where it shipped anywhere but New York). Ancestry did not do
this. The Court finds no unfairness by haling Ancestry into court in Indiana.

The Court further finds that Mr. Fry’s claim arises out of or relates to Ancestry’s
minimum contacts with Indiana. Courts may consider advertisements as part of the conduct
indicating targeting of the forum, and this case arises out of those very advertisements to Indiana
residents. See uBID, 623 F.3d at 427. The advertisements to Indiana residents are both the
proximate cause of Mr. Fry’s injury and part of the minimum contacts; this satisfies even the
most stringent standard under the second prong. Id. at 430; cf. Advanced Tactical Ordnance Sys.,
LLC v. Real Action Paintball, Inc., 751 F.3d 796, 803 (7th Cir. 2014), as corrected (May 12,
2014) (sales and advertisements had no connection with trademark infringement cause of action).
Plus, as Mr. Fry has alleged, Ancestry is most likely to show the ads featuring his likeness to
those within his social circle, who have a higher likelihood of remaining in Indiana. See Walden

v. Fiore, 571 U.S. 277, 287–88 (2014) (reputational harms necessarily occur in the plaintiff’s
community, forming stronger connection between the defendant and the plaintiff’s state of
residence). The Court therefore finds the elements of specific personal jurisdiction are met and
the Court may exercise personal jurisdiction over Ancestry.
(2) Mr. Fry has adequately pled a concrete injury sufficient to sustain Article
III standing.
The Court finds Mr. Fry’s two alleged injuries are sufficiently concrete under Supreme
Court precedent because they have common law analogs or arise at common law and because
Mr. Fry alleges these injuries actually happened to him. The Court notes it is Mr. Fry’s burden to
show standing at all stages and rejects Mr. Fry’s argument that he will not need to offer evidence

of some actual injury to himself in later proceedings to recover.
(a) Mr. Fry alleges two sufficiently concrete injuries giving rise to Article III
standing.
The allegations of injury in the complaint are sufficiently concrete to give Mr. Fry Article
III standing to sue. Mr. Fry’s response brief identifies four injuries, which are needlessly
complex in their formulation. Mr. Fry elaborates on the kind of harms that misappropriation can
lead to, including economic losses and, confoundingly, referring to his likeness as “intellectual
property.” He states these as though they are the concrete injuries, but this is unnecessary, as the
interest protected by the rule against misappropriation is itself an injury if invaded, and no
showing of downstream effects is necessary. Restatement (Second) of Torts § 652C cmt a (1977)

(this section protects a right in the nature of a property right); see also Ewing v. MED-1 Sols.,
LLC, 24 F.4th 1146, 1154 (7th Cir. 2022) (reputational harm is a real-world injury and
sufficiently concrete; no downstream injuries need be demonstrated). Thus, actual
misappropriation or a violation of Mr. Fry’s right to publicity rights satisfies the requirements of
Spokeo; no elaborate formulation of the injury is necessary. See Spokeo, Inc. v. Robins, 578 U.S.
330, 341 (2016). More simply, Mr. Fry’s complaint alleges that he was injured by the
unauthorized use of his likeness, which has been recognized at length to be a cognizable injury in
the common law, and that he suffered psychological distress because he feared the risk that his
image would be shared and that his contacts would wrongfully presume his endorsement. These
allegations of injury are sufficiently concrete under both Spokeo and TransUnion to state a claim.
See id.; TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2209–10 (2021).
The Court must first inquire whether Mr. Fry’s statutory claim states an injury similar to
those recognized at common law. In Spokeo, the Supreme Court held that a bare procedural

violation of a Congressionally-enacted statute divorced from any concrete harm could not satisfy
Article III standing. 578 U.S. at 341. In order to determine whether a concrete harm exists for
statutory violations, a court must consider both the judgment of the enacting body and whether
the harm has a close relationship to one traditionally regarded as providing a basis for a lawsuit
in English or American courts. Id. One alleged injury in Mr. Fry’s statutory claim is the injury to
his right of publicity, a substantive right. The Indiana statute largely codifies the common law
right of publicity. Daniels v. FanDuel, Inc., 109 N.E.3d 390, 394–95 (Ind. 2018) (“Daniels I”).
At common law, the misappropriation of the person’s likeness is an injury to the right of
publicity in itself. See Restatement (Second) of Torts § 652C cmt a (1977) (the right of publicity
is in the nature of a property right). Therefore, the statutory injury has a basis in the common law

and alleging a violation of the statute would be sufficiently concrete to give rise to Article III
standing. See 578 U.S. at 341; see also Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th
Cir. 2020) (finding a statutory injury concrete by analogy to intrusion upon seclusion).
Though the right of publicity was recognized relatively recently, its roots stretch back
further, such that the basis of the substantive right within the common law is undeniable. It,
along with the other privacy torts, was distilled from courts’ earlier First Amendment and
defamation precedents; privacy torts frequently cross-cite and borrow terminology from
defamation cases. See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 570–72 (1977)
(recognizing misappropriation and describing the history of the privacy torts); Time, Inc. v. Hill,
385 U.S. 374, 386–87 (1967) (discussing New York false light precedent in light of New York
Times Co. v. Sullivan, 376 U.S. 254 (1964), decided only a few years prior); Daniels I, 109
N.E.3d at 396 (construing “newsworthy” consistent with First Amendment precedent). This
creates a constitutionally cogent body of law, but the ties run deeper, to the heart of what it

means to be defamed or have one’s likeness misappropriated: harm to one’s reputation. See
Restatement (Second) of Torts § 652C cmt c (1977)(use of one’s reputation is appropriation).
Reputation harm has been recognized as sufficiently concrete under Spokeo by our circuit in the
context of defamation. See Ewing, 24 F.4th at 1154 (reputational harm is a real-world injury and
sufficiently concrete to create standing). Given the close ties between defamation and
misappropriation, including their cogency as a body of law, their near simultaneous formulation
under Supreme Court precedent, and interests protected, this Court has no hesitancy in finding
that harm to reputation, as recognized by the right of publicity, has deep roots as a concrete
injury in the common law.
Mr. Fry also alleges a second injury: the psychological injury caused by the stress of

worrying if his likeness would be disseminated and to whom. The Supreme Court’s recent
precedent allows such a claim as a distinct and concrete injury. In later stages, Mr. Fry and other
class members will have to show that this injury actually occurred and was sufficiently serious to
be actionable; a few minutes of annoyance or concern would not suffice. See Gadelhak v. AT&T
Servs., Inc., 950 F.3d 458, 463 (7th Cir. 2020) (recognizing some annoyances are too minor to be
actionable at common law).2 This Court notes a fine distinction that may become important later:
Mr. Fry has stated the injury is the psychological stress caused by worrying that his likeness may
be used, not the risk itself. In TransUnion, the Court wrote that the risk of harm generally can
only sustain a petition for injunctive relief but might sustain a claim for damages if the exposure
to the risk caused a separate concrete harm, such as psychological distress analogues to the harm
captured by IIED claims. 141 S.Ct. at 2210–11. The Court finds Mr. Fry has adequately pleaded

the psychological injury, and the injury could sustain either a claim for damages or injunctive
relief.
(b) The Court notes Mr. Fry will bear the burden of establishing standing by
showing a concrete violation at summary judgment and trial.
The Court pauses to note that while Mr. Fry’s allegations are sufficient, Mr. Fry will
continue to bear the burden of establishing standing throughout the life of this litigation. See
Midwest Fence Corp. v. United States Dep't of Transportation, 840 F.3d 932, 939 (7th Cir.
2016). While the Court would normally contain itself to the motion at hand, the Court found an
argument included by plaintiff’s counsel in Mr. Fry’s response brief disquieting. Mr. Fry
adequately alleged Ancestry displayed the advertisements incorporating his name and yearbook

photograph to people in Indiana in paragraph 60 of the complaint. (DE 1 at 19.) He also included
screenshots of the advertisements containing his name and likeness, which allegedly were shown
to persons who knew him in Indiana. (DE 1 at 8–15.) However, in the response brief, Mr. Fry
writes those screenshots were “displayed to Plaintiff’s attorneys during the investigation and
preparation of the Complaint.” (DE 24 at 11.) The response also includes as an exhibit a sworn

2 The Court finds plausible that Mr. Fry and some other people might find the use of their likeness in Ancestry’s ad
highly distressing. While the Court has some doubts regarding the numerosity of these people, the Court does not
attempt to prescribe or summarize society’s shifting mores regarding privacy online as a matter of law.
statement by a person engaged by counsel to search for Mr. Fry on Ancestry just days before the
response was filed. (DE 24-1.) If these constitute the only uses of Mr. Fry’s likeness in
Ancestry’s advertising, Mr. Fry would not have standing under his actual injury theory because
his injury would be entirely self-inflicted.
The Court takes seriously its obligations under Rule 12(b)(6) and credits the allegations
in the complaint as true. These allegations allege members of the public “may and have searched

for Mr. Fry by name” and detail at length how Ancestry “sends these and similar emails bearing
Mr. Fry’s and Class members’ names and likeness to users.” (DE 1 at ¶¶ 34; 39.) For the purpose
of this motion, the Court believes these allegations and finds them adequate to allege that Mr.
Fry’s name and likeness were used in advertisements to third parties. However, the Court is
concerned that Mr. Fry’s other statements evince a possible belief that he will not need to prove
his image was used in advertisements to third parties at a later stage; this is incorrect. See
Spokeo, 578 U.S. at 340 (a concrete injury “must actually exist”).
The Court cautions that in order for Mr. Fry to have standing based on the first alleged
injury, the offending conduct—the misappropriation of his likeness for commercial gain—has to
have actually happened at least one time. See TransUnion, 141 S. Ct. at 2206 (“An uninjured

plaintiff who sues in those circumstances is, by definition, not seeking to remedy any harm to
herself” and does not have standing). And this kind of claim—misappropriation in advertising—
necessarily requires that some third party saw the advertisement at some point. It will not suffice
if the advertising occurred only to Mr. Fry’s attorneys for the purpose of litigation, as that defies
all logic. Plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based
on their fears of hypothetical future harm that is not certainly impending.” See Clapper v.
Amnesty Int'l USA, 568 U.S. 398, 416 (2013). It is silly to complain at length that one is
devastated by the unauthorized use of his yearbook photo to sell a product where he orchestrated
the use and the injury may not have occurred but for his initiative. Buchholz v. Meyer Njus
Tanick, PA, 946 F.3d 855, 866 (6th Cir. 2020) (self-inflicted injury severs the connection
between the defendant and the harm).
Mr. Fry appears to contest the relevance of the actual use of his likeness in advertising,
stopping just short of arguing that advertising to his attorneys alone for the purpose of this

litigation is sufficient. He argues that this action is distinct from TransUnion because unlike
defamation, misappropriation does not depend on disclosure to a third party, so there is no need
for his photo to have been actually used. This misses the mark; while there is no disclosure
requirement, both the statute and the common law require the use of a person’s likeness; there is
no liability for mere possession of a person’s photo. See Ind. Code § 32-36-1-8(a). And it is
difficult to think of a use “for advertising” or “on or in connection with a product” that does not
involve disclosure to some third party; Mr. Fry certainly has not alleged one. See Ind. Code § 32-
36-1-2. So, while the Court does not intend to subject Mr. Fry’s claims to a defamation analysis,
his claim is like all others in that something must have actually happened (other than the decision
to sue) before liability can accrue. See Gubala v. Time Warner Cable, Inc., 846 F.3d 909, 911

(7th Cir. 2017) (“as otherwise the federal courts would be flooded with cases based not on proof
of harm but on an implausible and at worst trivial risk of harm”). Similarly, the psychological
injury must also have occurred; on summary judgment, the plaintiffs will have to show the class
members at least knew about the possibility that their likenesses would be used for Ancestry’s
advertising and that the psychological harm is sufficient to constitute an injury capable of
sustaining a cause of action. See TransUnion, 141 S.Ct. at 2211; see also Gubala, 846 F.3d at
911 (plaintiff who did not allege plausible concrete risk of harm did not have standing).
These concerns do not rise to the level that the Court feels it must look beyond the
pleadings, especially since Ancestry has not provided evidence showing Mr. Fry lacks standing,
and Mr. Fry has not been afforded an opportunity to clarify his statements. See Taylor v.
McCament, 875 F.3d 849, 853 (7th Cir. 2017) (court may look at evidence submitted on the issue
where external facts call the court’s jurisdiction into question on motion to dismiss). The inquiry
treads too close to a factual determination to be comfortable at this juncture, and the Court trusts

that Mr. Fry will later produce evidence of the truthfulness of his allegations: that his likeness
was used in advertisements to someone other than his attorneys or their agents.
(3) Mr. Fry properly pled his Indiana Right of Publicity Claim.
Mr. Fry properly pled a claim under Indiana’s law prohibiting use of a personality’s right
of publicity because his likeness has commercial value and his territoriality allegations are
adequate. The statute reads: “A person may not use an aspect of a personality’s right of publicity
for a commercial purpose during the personality’s lifetime or for one hundred (100) years after
the date of the personality’s death without having obtained previous written consent from a
person specified in section 17 of this chapter.” Ind. Code § 32-36-1-8(a). Mr. Fry’s likeness has
commercial value sufficient to render him a qualifying “personality” under the statute, and he

has sufficiently alleged territoriality.
(a) He is a personality because his likeness has commercial value.
Ancestry argues that Mr. Fry does not qualify for the protection of the statute because he
is not a qualifying personality, as his name and likeness have no commercial value. The statute
prohibits the use by a person of “an aspect of a personality’s right of publicity for commercial
purposes.” Ind. Code § 32-36-1-8(a). The statute defines a personality as “a living or deceased
natural person whose: (1) name; (2) voice; (3) signature; (4) photograph; (5) image; (6) likeness;
(7) distinctive appearance; (8) gesture; or (9) mannerisms; has commercial value, whether or not
the person uses or authorizes the use of the person’s rights of publicity for a commercial purpose
during the person’s lifetime.” Ind. Code § 32-36-1-6. “Commercial value” is not defined. The
core question becomes what does it mean to have commercial value within the context of the
statute, and does Mr. Fry’s name or likeness have it?3
Though precedent on the issue is not voluminous, the Court finds it fairly obvious that

Mr. Fry’s name and likeness have commercial value. Why else would Ancestry bother to include
it in its advertisements? See McFarland v. Miller, 14 F.2d 912, 922 (3d Cir. 1994) (“In taking
[plaintiff’s] name, [defendant] unfairly sought to capitalize on its value. The very act of taking it
for that purpose demonstrates the name itself has worth.”) Ancestry lodges two objections to this
reading: (1) the commercial value must be shown by Mr. Fry: that it must be his monetary loss,
and he must make some demonstration that he could license his image or he had plans to do so,
and (2) basing the commercial value on Ancestry’s use of Mr. Fry’s likeness renders surplus the
statute’s requirement of a use for a “commercial purpose.” The first of these, that Mr. Fry must
show the loss, is easily disposed with: the Indiana statute clearly states commercial value exists
regardless of whether the personality ever exercises their right of publicity, and the common law,

upon which the statute is based, entitles “individual[s] to the exclusive use of his own identity;”
he may grant a license to a third person to use his identity for their benefit, but he alone owns the
right. Ind. Code § 32-36-1-6; Restatement (Second) of Torts § 652C cmt a (1977). Once again,

3 Ancestry argues on reply that Mr. Fry has not stated a claim because he cannot allege his yearbook image had
“commercial value.” (DE 29 at 13.) But that is not the correct inquiry—the statute is concerned with whether Mr.
Fry’s likeness (that is, his visage, his appearance, his very him-ness) has commercial value, not whether the specific
manifestation of his likeness had commercial value.
the Court will not require Mr. Fry to show further harms where the appropriation of his likeness
is already recognized as an injury at common law. See Ewing, 24 F.4th at 1153.
The Court does not find Ancestry’s statutory interpretation argument persuasive because
the distinction between commercial purpose and commercial value requires a more subtle
analysis than Ancestry has afforded it. There is commercial value to Mr. Fry’s likeness because
Ancestry shows the ads to people who search for Mr. Fry and therefore are likely to know him.

The commercial value at work in Ancestry’s display of Mr. Fry’s image is leveraging his
likeness and the ideas it inspires—his reputation and his life in the mind’s eye of others—to sell
a product. Kellman v. Spokeo, Inc., 599 F. Supp. 3d 877, 891 (N.D. Cal. 2022) (interpreting
identical statute and finding reputation within the relevant community can support commercial
value); see also See Cheatham v. Paisano Publications, Inc., 891 F. Supp. 381, 386–87 (W.D.
Ky. 1995) (commercial value means distinctiveness of the identity plus degree of recognition of
the person among those receiving the publicity). Indiana statute’s commercial value requirement
captures the same values as the Restatement’s comment (c), which provides that “the defendant
must have appropriated to his own use or benefit the reputation, prestige, social or commercial
standing, public interest or other values of the plaintiff’s name or likeness.” See Restatement

(Second) of Torts § 652C cmt c (1977). The ad is only effective (and the use commercially
valuable) if a person knew Mr. Fry at some point, otherwise, the viewer is unlikely to feel moved
or compelled in any way by Mr. Fry’s likeness.4

4 “Peer-to-peer” marketing is of growing interest in many industries, and commentators note it may be more
effective than traditional advertising or influencer marketing because people trust their friends and family. See
Wissman, Barrett, Peer-to-Peer is the Next Wave of Influencer Marketing, Entrepreneur.com (June 20, 2019). Our
reputations, standing in our communities, and social connections are undeniably valuable; their ability to sell
products is well-established in modern life.
Ancestry argues that defining the commercial value in terms of what Ancestry gained by
using Mr. Fry’s likeness renders the statute’s “commercial purpose” requirement extraneous.
Under Indiana rules of statutory interpretation, “courts should try to give effect to each word in a
statute, [but] they ought not to do so myopically. Instead, the statute should be examined as a
whole, avoiding both excessive reliance on strict literal meaning and selective reading of
individual words.” Est. of Moreland v. Dieter, 576 F.3d 691, 695 (7th Cir. 2009) (applying

Indiana law). The statute defines “commercial purpose” as the use of an aspect of a personality’s
right of publicity “(1) On or in connection with a product, merchandise, goods, services, or
commercial activities. (2) For advertising or soliciting purchases of products, merchandise,
goods, services, or for promoting commercial activities. (3) For the purpose of fundraising.” Ind.
Code § 32-36-1-2 (punctuation original). This is not a difficult question of statutory
interpretation, as a brief exercise demonstrates that the Court’s definition of commercial value is
easily reconcilable with the commercial purpose requirement while giving effect to all
provisions. One could imagine a scenario where a common person’s image is used in the same
manner as in Ancestry’s ads (commercial purpose under prong 2), but inspires no recognition;
for instance, if Ancestry sent Mr. Fry’s community the yearbook photos of this Court’s judicial

law clerks, who have no reputation, prestige, or standing in Mr. Fry’s community. This would
not be commercially valuable—the recipients would likely be confused at best. And one could
imagine an instance where Mr. Fry’s likeness was used in a different sort of Ancestry ad
(commercial purpose) without commercial value, such as if he merely appeared as an
unavoidable background bystander in a television ad shot in a city. When the Court says, “Why
else would Ancestry have used Mr. Fry’s image?” the Court is not conflating commercial
purpose with commercial value, but merely resting on expressions of logic to capture our
changing reality: that businesses increasingly leverage our closest and most precious connections
online to sell products. Therefore, finding that Mr. Fry’s likeness had commercial value does not
render it duplicative of the statute’s commercial purpose requirement. Mr. Fry has stated a cause
of action alleging his personality was appropriated, because his complaint alleges his likeness
was used in advertisements to the community in which he is recognized.5
(b) Territoriality hangs on the same allegations as standing.

Ancestry also argues that Mr. Fry has failed to properly allege territoriality, as the statute
requires violations occur “within Indiana.” See Ind. Code § 32-36-1-8(a). The Court notes other
courts applying this territoriality provision have struggled with the question of which acts must
occur in Indiana. See Kellman, 599 F. Supp. 3d at 893 (applying “unsettled” Indiana law to the
Indiana statute). The Court would be entitled to defer consideration of this complex issue until
discovery had taken place. Id. However, the Court finds Mr. Fry has pled an act that occurred
within Indiana—that people in Indiana were advertised to by Ancestry with photos containing
his likeness. (DE 1 at ¶¶ 2; 60.) Even under the strictest reading of Indiana’s territoriality
requirement, this suffices. See Boshears v. PeopleConnect, Inc., No. C21-1222 MJP, 2022 WL
888300, at *3 (W.D. Wash. Mar. 25, 2022) (properly pled allegations of non-consensual use of

plaintiff’s likeness in Indiana may be sufficient to satisfy Indiana’s territoriality requirement). As
with standing, the evidence will need to eventually support Mr. Fry’s territoriality allegations,
but the pleading is legally sufficient, and that is all that is required at this stage.

5 The Court has some discomfort concerning the recognition principle given the predominance of algorithms that
show the content and likeness of unknown persons to users outside their social circle, e.g. those used by TikTok and
Instagram “Reels.” One could imagine a business misappropriating the likeness of a formerly unknown regular
person who “goes viral” in the misappropriating post. It seems proper that courts might pay close attention when
tailoring the recognition within the community inquiry in order to best approximate the expectations of the common
law.
(4) Mr. Fry properly pled his common law misappropriation claim.
There is scant precedent regarding common law misappropriation in Indiana. We know
from the Court’s decision in Felsher that such a right exists, and the claim requires
“appropriation, for the defendant’s benefit or advantages, of the plaintiffs name or likeness,” but
we have little other guidance regarding its interpretation. See Felsher v. Univ. of Evansville, 755
N.E.2d 589, 601 n.24 (Ind. 2001). As such, it is appropriate for the Court to apply the

Restatement and precedent from other courts applying the Restatement. Lemon v. Harlem
Globetrotters Int'l, Inc., 437 F. Supp. 2d 1089, 1100 (D. Ariz. 2006) (applying Restatement in
the absence of Arizona precedent). Other than the failed arguments also lodged against the
statutory claim, Ancestry has not stated any missing element of common law misappropriation in
the complaint, and the Court independently finds the requirements are met. The Court finds Mr.
Fry has stated a claim for common law misappropriation for the reasons stated above, and now
moves to other statutory arguments that Ancestry argues eviscerate both his common law and
statutory claims.
(5) None of Ancestry’s other arguments are persuasive on this motion.
Ancestry launches a number of other attacks at Mr. Fry’s claims. The Court does not find

them persuasive or capable of defeating Mr. Fry’s claims.
(a) This use does not fall into the statutory exceptions or incidental use.
Ancestry argues the advertisements fall into the statutory exception for material that has
political or newsworthy value or the exception for literary works. Ind. Code § 32-36-1-1(c)(1).
The Court begins with the exception for “material that has political or newsworthy value.” Id.
The Court can easily see how the trove of records contained in the Ancestry.com website would
be considered newsworthy under the broad reading established in Daniels I. 109 N.E.3d at 396
(newsworthiness “include[s] all types of factual, educational and historical data, or even
entertainment and amusement, concerning interesting phases of human activity in general”). The
ability to capture the past and discover one’s ancestral roots certainly strike the Court as within
the public interest and of historical and educational significance. But the exception specifies that
it is for material that has value, so the value must be in the challenged use, not some other
related material. See Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 924 (N.D. Ohio 2004) (an

advertisement for newsworthy material is not insulated under similar statute); Daniels v.
FanDuel, Inc., 884 F.3d 672, 674 (7th Cir. 2018) (“Daniels II”) (material, not name or likeness,
must be newsworthy). Mr. Fry is not challenging Ancestry’s use of his yearbook image on their
website generally; he specifically challenges its use in conjunction with advertising. See
generally DE 1; see DE 24 at 16 (“Plaintiff does not protest Ancestry’s distribution of their
yearbooks. Plaintiff protests Ancestry’s unauthorized use of their personas in advertisements.”)
Ancestry cannot seriously argue that its ads alone are “material that has political or
newsworthy value,” even as broadly as that term has been defined. Cf. Stayart v. Google Inc.,
710 F.3d 719, 723 (7th Cir. 2013) (newsworthy material not for an “advertising purpose” under
similar statute). Ancestry contests this, writing that Daniels I rejected the argument that the

newsworthiness exception cannot apply to advertisements. This all paints with too broad a brush.
Daniels I merely held that the newsworthiness exception may “apply in the context of
commercial use;” it differentiated between use of the information behind a paywall (which
remained newsworthy) and the use of the information in advertising (which “lies outside the
scope of what is considered newsworthy”). 109 N.E.3d at 398. Thus, the Court is not persuaded
that the newsworthiness exception prevents Mr. Fry’s statutory or common law claims from
proceeding.6
Ancestry’s argument regarding literary works fairs no better. Ancestry points out Indiana
precedent allows video games to be literary works. See Dillinger, LLC v. Elec. Arts Inc., 795 F.
Supp. 2d 829, 836 (S.D. Ind. 2011). This is true, and the case holding that video games may be
literary works provided a litany of citations in support of that position and a robust explanation.

See id. Ancestry offers no citation for the proposition that advertisements are literary works, and
relies entirely on mischaracterizing the contested material as the yearbooks themselves. (DE 19
at 18.) Therefore, the Court does not find the exception for literary works relieves Ancestry of
liability for use of Mr. Fry’s likeness in its advertisements.
(b) Ancestry’s other arguments also fail.
In its final arguments, Ancestry writes that it should be excepted from liability because it
alternately (1) is not a publisher or speaker, just a website, and so should be sheltered from
liability under Section 230; (2) is in fact a speaker, and so is protected under Indiana’s anti-
SLAPP statute, or (3) is just using already copyrighted material, so the claims are preempted by
the Copyright Act. The Court does not find these arguments meritorious, and will not expend a

great amount of time on them, instead referring the parties to the excellent opinions of the sister
courts in Sessa and Bonilla. As those courts found, Ancestry’s ads represent commercial speech
not in furtherance of the public interest, so neither Section 230 nor the anti-SLAPP statute apply.

6 The parties do not agree regarding whether a newsworthiness exception applies to Mr. Fry’s common law claims.
It might; one Indiana court discussed the public interest exception in the context of several similar privacy claims.
See Near E. Side Cmty. Org. v. Hair, 555 N.E.2d 1324, 1335–36 (Ind. Ct. App. 1990); see also Bosley v.
Wildwett.com, 310 F. Supp. 2d 914, 924 (N.D. Ohio 2004) (carving out a newsworthiness exception to common law
misappropriation). Even if there is no common law newsworthiness exception, the same general idea is captured in
the Restatement’s comment on incidental use. Restatement (Second) of Torts § 652C cmt d (1977). In any event, no
exception applies on these facts.
See Bonilla, 574 F.Supp.3d at 592 (Ancestry is not a mere conduit for the posts of others and
therefore is not eligible for Section 230 protection); Sessa, 561 F.Supp.3d at 1034–35
(Ancestry’s ads are not eligible for anti-SLAPP protection for the same reason they are not
newsworthy); see also Kellman v. Spokeo, Inc., 599 F. Supp. 3d 877, 898 (N.D. Cal. 2022)
(Defendant “is not alleged to merely host user-generated content, it is alleged to actively take
content from other sources, curate it, and upload it to its site in a novel configuration for

repurposed uses. That makes it at least ‘in part’ responsible for the ‘creation and development’ of
this material”) (emphasis original).
The Court further finds Ancestry’s argument that Mr. Fry’s claims are preempted by the
Copyright Act unavailing. The Copyright Act preempts a state law claim if the subject matter of
the state law claim falls within the subject matter of copyright and if the rights asserted under
state law are equivalent to those contained in the Copyright Act. Sessa, 561 F.Supp.3d at 1031.
The Court analyzes only the second question and finds that the rights asserted by Mr. Fry are not
equivalent to those contained in the Copyright Act. The real right at issue here is Mr. Fry’s right
to privacy in his identity, and to control the when and how his likeness is used to promote a
product. Many courts have found a person’s identity cannot be contained within a photograph

and the right implicated is not protected by or in conflict with copyright law. In Toney, the
Seventh Circuit clearly stated, “Copyright laws do not reach identity claims such as [plaintiff’s].
Identity, as we have described it, is an amorphous concept that is not protected by copyright law;
thus, the state law protecting it is not preempted.” Toney v. L'Oreal USA, Inc., 406 F.3d 905, 910
(7th Cir. 2005). The court wrote that the plaintiff’s “identity is not fixed in a tangible medium of
expression” because “[a] person’s likeness—her persona—is not authored and it is not fixed. The
fact that an image of the person might be fixed in a copyrightable photograph does not change
this.” Id. This Court would be satisfied to decide the issue based on that clear circuit precedent
alone, but it also notes other circuits are in accordance. See In re Jackson, 972 F.3d 25, 37–38
(2d Cir. 2020) (right of publicity claims based in privacy or consumer protection not preempted);
Brown v. Ames, 201 F.3d 654, 661 (5th Cir. 2000) (“Since appellees’ misappropriation claims
neither fall within the subject matter of copyright nor conflict with the purposes and objectives of
the Copyright Act, the claims were not preempted.”); Downing v. Abercrombie & Fitch, 265

F.3d 994, 1004 (9th Cir. 2001) (“A person’s name or likeness is not a work of authorship within
the meaning of 17 U.S.C. § 102. This is true notwithstanding the fact that Appellants’ names and
likenesses are embodied in a copyrightable photograph.”) The argument that Mr. Fry’s claim is
preempted by federal copyright law is without merit.
D. Conclusion
Therefore, the Court DENIES Ancestry’s motion to dismiss. (DE 18.) The Court further
DENIES as moot Ancestry’s motion for oral argument (DE 30), as the Court fully considered the
arguments raised in the briefs and did not find oral argument necessary for a fair and proper
resolution of the motion to dismiss.
SO ORDERED.

ENTERED: March 24, 2023

/s/ JON E. DEGUILIO
Chief Judge
United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10163747. Public record. Not legal advice.