# Wilson v. Ancestry.com LLC

> District Court, S.D. Ohio · January 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10381724

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** January 31, 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/10381724

## How later opinions describe it (automated extraction)

- finding that defendants met the purposeful availment requirement where they maintained a website on which Ohio residents could register domain names and accepted the business of more than 4,000 Ohio residents
- holding that a “person’s name or likeness” does not come within sections 102 or 103 of the Copyright Act
- clarifying plausibility standard articulated in Twombly
- noting also that Ohio’s codified right of publicity does not supplant common law invasion of privacy

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN WILSON, on behalf of himself
and all others similarly situated,

Plaintiff,
Case No. 2:22-cv-861
v. JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson

ANCESTRY.COM LLC, et al.,

Defendant.

OPINION AND ORDER
This matter is before the Court on Defendants Ancestry.com Operations Inc., Ancestry.com
Inc., and Ancestry.com LLC’s (collectively, “Ancestry”) Motion to Dismiss Class Action
Complaint (ECF No. 13), Plaintiff John Wilson’s Opposition to Ancestry’s Motion to Dismiss
(ECF No. 29), and Ancestry’s Reply (ECF No. 33). For the reasons set forth below, the Court
DENIES Ancestry’s Motion to Dismiss. (ECF No. 13.)
I. BACKGROUND
On February 21, 2022, Plaintiff John Wilson, on behalf of himself and all others similarly
situated, filed this putative class action alleging that Ancestry, which owns www.ancestry.com,
used Wilson and the proposed class members’ names and personas to promote paid subscriptions
to the Ancestry website without their consent. (Compl. ¶ 1, ECF No. 1.) According to the
Complaint, a paid subscription to Ancestry.com provides subscribers with access to a wide range
of services, such as access to Wilson and the putative class members’ yearbook photos, personal
information, and more than 18 billion records worldwide, as well as multiple tools that allow users
to “[g]row a family tree.” (Id. at ¶ 10.)
Wilson identifies three advertising techniques in which Ancestry, without Wilson’s
consent, uses his persona to encourage viewers to subscribe to Ancestry’s services. First, via
Ancestry’s publicly accessible landing page, any visitor may search for any person by name and
location. (Compl. ¶ 6, ECF No. 1.) Upon returning a search for Wilson or any proposed class

member, Ancestry retrieves a list of corresponding yearbook photographs accompanied by
promotional text urging the visitor to “Sign Up Now” for a subscription. (Id.) The promotional
text further encourages purchase of a subscription by promising that “There’s more to see” about
the searched individual, including higher-resolution photographs and additional personal
information, such as the individual’s city of residence, estimated age, and high school graduation
year. (Id.)
As for the second advertising technique, Ancestry sends promotional emails and onsite
messages to users who have not yet subscribed and who may be related to Wilson or a proposed
class member. (Id. at ¶¶ 7, 38.) Wilson alleges that these emails and messages use his and the
proposed class members’ names and identities, referencing one promotional email with the subject

line “What should you explore next for [proposed class member]?” (Id.) The body of the email
provides a link, and if the recipient follows the link, he or she is taken to a webpage asking him or
her to subscribe to Ancestry.com. (Id.)
In the third advertising technique, Ancestry allows users to enroll in a two-week free trial
membership during which users have full access to Ancestry’s services. (Id. at ¶ 8.) These users
may search for, view, print, and share Wilson and other proposed class members’ personal
information. (Id.) As alleged, Ancestry’s “sole purpose” in granting free-trial users access to
Wilson and the proposed class members’ personal information is to solicit the purchase of paid
memberships. (Id.)
Wilson is a resident of Morgan County, Ohio. (Id. at ¶ 26.) He is not a subscriber to any of
Ancestry’s products or services, nor has he ever visited Ancestry.com. (Id. at ¶ 27.) Ancestry uses
at least two photographs depicting Wilson to advertise subscriptions to Ancestry.com. (Id. at ¶ 32.)
In all three advertising techniques detailed above, Ancestry uses Wilson’s name and photograph.

(Id. at ¶¶ 33-39.) Wilson did not give consent to Ancestry to use his name, photograph, likeness,
or persona in any way. (Id. at ¶ 30.)
Wilson brings this putative class action against Ancestry alleging (1) misappropriation of
his and the putative class members’ personas in violation of Ohio’s right of publicity statute, Ohio
Rev. Code § 2741, and (2) invasion of privacy by means of appropriation under Ohio common
law.1 (Id. at ¶¶ 55-66.)
II. LEGAL STANDARD
A. 12(b)(2)
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss for lack
of personal jurisdiction. “The party seeking to assert personal jurisdiction bears the burden of

demonstrating that such jurisdiction exists.” Schneider v. Hardesty, 669 F.3d 693, 697 (6th Cir.
2012) (quoting Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002)) When a court considers a
motion to dismiss pursuant to Rule 12(b)(2) without an evidentiary hearing, as the Court does here,
it must consider the pleadings and affidavits in the light most favorable to the plaintiff.
CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996). In such an instance, the

1 Wilson refers to his common law claim as a “[t]ort of appropriation of a name or likeness,” citing to Zacchini v.
Scripps-Howard Broadcasting Co., 351 N.E.2d 454, 458 n. 4 (Ohio 1976). (Compl. ¶ 64, ECF No. 1.) This Court
and the Sixth Circuit have previously referred to this claim as an “invasion of privacy,” and therefore, in the interest
of maintaining consistency, the Court will do so here. See Roe v. Amazon.com, 170 F. Supp. 3d 1028, 1034 (S.D.
Ohio 2016) (referring to plaintiff’s claim as “common law invasion of privacy by means of appropriation,” relying
on Zacchini); Bowling v. Bowling, No. 91-5920, 1992 U.S. App. LEXIS 18505, at *12 (6th Cir. 1992) (“one who
appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion
of his privacy.”) (Quoting Restatement (Second) of Torts § 652C cmt. a).
plaintiff “need only make a prima facie showing of jurisdiction.” Bird, 289 F.3d at 871 (quoting
Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002)). And the court may
not weigh “the controverting assertions of the party seeking dismissal.” MAG IAS Holdings, Inc.
v. Schmückle, 854 F.3d 894, 899 (6th Cir. 2017) (quoting Theunissen v. Matthews, 935 F.2d at

1459).
B. 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of actions that fail to state
a claim upon which relief can be granted. While Rule 8(a)(2) requires a pleading to contain a “short
and plain statement of the claim showing that the pleader is entitled to relief,” in order “[t]o survive
a motion to dismiss, a 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, 697
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 678 (clarifying plausibility

standard articulated in Twombly). Further, “[a]lthough for purposes of a motion to dismiss [a court]
must take all of the factual allegations in the complaint as true, [it is] not bound to accept as true a
legal conclusion couched as a factual allegation.” Id. at 678 (quoting Twombly, 550 U.S. at 555)
(internal quotations omitted).
III. DISCUSSION
Ancestry asserts five grounds upon which the Court should dismiss Wilson’s Complaint:
(1) the Court lacks personal jurisdiction over Ancestry, (2) Wilson lacks Article III standing, (3)
Wilson cannot state a plausible claim under Ohio’s right of publicity statute or under Ohio common
law, (4) section 230 of the Communications Decency Act forecloses Wilson’s claims, and (5) the
Copyright Act preempts Wilson’s claims. (Mot. to Dismiss, ECF No. 13, p. 2.) The Court
addresses each ground in turn.
A. Personal jurisdiction over Ancestry
Wilson argues that Ancestry’s contacts with Ohio giving rise to this action establish

specific personal jurisdiction; the Court agrees. (Pl. Opp’n, ECF No. 29, pp. 3-6.)
For the court to exercise specific jurisdiction over the defendant, “[t]he plaintiff’s claims
‘must arise out of or relate to the defendant’s contacts with the forum.” Ford Motor Co. v. Mont.
Eighth Judicial Dist. Court, 141 S. Ct. 1017, 1025 (2021) (quoting Bristol-Myers Squibb Co. v.
Superior Ct. of Cal., San Francisco Cty., 137 S. Ct. 1773, 1780 (2017)). Further, “[a] federal court
sitting in diversity may not exercise jurisdiction over a defendant unless courts of the forum state
would be authorized to do so by state law—and any such exercise of jurisdiction must be
compatible with the due process requirements of the United States Constitution.” Int’l Techs.
Consultants, Inc. v. Euroglas S.A., 107 F.3d 386, 391 (6th Cir. 1997) (citation omitted). “Under
Ohio law, personal jurisdiction over non-resident defendants is available only if (1) the long-arm
statute confers jurisdiction and (2) jurisdiction is proper under the Federal Due Process Clause.”2

Conn v. Zakharov, 667 F.3d 705, 712 (6th Cir. 2012) (citing Kauffman Racing Equip., L.L.C. v.
Roberts, 930 N.E.2d 784, 790 (2010); Goldstein v. Christiansen, 638 N.E.2d 541, 543 (1994)).

2 Because the reach of Ohio’s long-arm statute is unclear—namely, whether the statute is coterminous with the
United States Constitution—the Court presumes that Wilson must make a prima facie showing of jurisdiction under
both prongs. See QFS Transp., LLC v. Huguely, No. 1:21-cv-00769, 2022 U.S. Dist. LEXIS 95329, at *10-12 (S.D.
Ohio May 27, 2022) (discussing implications of recent amendment to Ohio’s long-arm statute and noting conflict
among district courts as to whether the amended statute is now coterminous with federal constitutional limits);
AmaTech Grp. Ltd. v. Fed. Card Servs., LLC, No. 1:21-cv-406, 2022 U.S. Dist. LEXIS 1655, at *10-13 (S.D. Ohio
Jan. 5, 2022) (same). In other words, rather than collapsing the analysis of Ohio’s long-arm statute’s specific
jurisdiction test into the federal standard, the Court will treat each test separately.
a. Ohio’s long-arm statute3
Under Ohio’s long-arm statute, a court may exercise specific personal jurisdiction over a
cause of action “arising from” the defendant “[c]ausing tortious injury by an act or omission in
this state . . . .” Ohio Rev. Code § 2307.382(A)(3); Ohio Civ. R. 4.3(A)(3); Estate of Poole v.

Grosser, 731 N.E.2d 226, 229 (1999) (noting that the court must determine whether “Ohio's long-
arm statute, R.C. 2307.382, and the complementary civil rule, Civ. R. 4.3, confer jurisdiction”).
Likewise, Ohio’s Civil Rule 4.3 provides for service of process on a nonresident defendant under
the same circumstances. Ohio Civ. R. 4.3(A)(3) (permitting service based on the defendant
“[c]ausing tortious injury by an act or omission in this state….”). In other words, “a court may
exercise personal jurisdiction over a party who causes tortious injury by an act or omission in
Ohio.” M.W. v. D.M., 2018-Ohio-392, ¶ 14 (Ct. App.).
The Court may properly exercise personal jurisdiction over Ancestry under Ohio’s long-
arm statute. At the outset, the Court notes that an invasion of privacy is unambiguously a tort. See
James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 122 (Ohio Ct. App. 2006) (“Ohio has adopted

the tort of misappropriation of the name or likeness of another as propounded by the
Restatement. (Emphasis added) (citing Zacchini v. Scripps-Howard Broadcasting Co 351
N.E.2d 454 (”O)hio 1976)); Bosley v. WildWetT.com, 310 F. Supp. 2d 914, 919 (N.D. Ohio .2,004)
(“At common law, invasion of the right to privacy is a tort.”) (Emphasis added).
Wilson’s Complaint alleges that Ancestry caused tortious injury in Ohio through
Ancestry’s invasion of Wilson’s privacy by means of appropriation. (Compl. ¶¶ 63-65, ECF No.
1.) The Complaint states that Ancestry copied Wilson and the proposed class members’ “personal

3 Ancestry’s Motion to Dismiss does not challenge the Court’s jurisdiction under Ohio’s long-arm statute, focusing
its attention instead on the propriety of the Court exercising personal jurisdiction under the Federal Due Process
Clause.
information from yearbooks or other sources located in Ohio”; that Ancestry displayed their
“names and photographs in advertisements expressly directed at Ohio residents,” and Ancestry
failed “to obtain required consent from Class members in Ohio[.]” (Id. at ¶ 21.) Thus, Ancestry
has “caused tortious injury by an act or omission” within Ohio; As such, the Court finds that

Ancestry is subject to specific personal jurisdiction under R.C. § 2307.382(A)(3).
b. Due process
Despite finding that personal jurisdiction is proper under Ohio’s long-arm statute, the Court
still must determine whether the Court’s exercise of personal jurisdiction over Ancestry is
consistent with the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. This inquiry asks the Court to examine whether Ancestry “possesses such minimum
contacts with [Ohio] that the exercise of jurisdiction would comport with ‘traditional notions of
fair play and substantial justice.’” Theunissen, 935 F.2d 1454, 1459 (6th Cir. 1991) (quoting Int’l
Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945)). This standard, as clarified by the Sixth
Circuit, permits specific jurisdiction over Ancestry only if Ancestry’s contacts with Ohio satisfy

three conditions:
First, the defendant must purposefully avail himself of the privilege of acting in the
forum state or causing a consequence in the forum state. Second, the cause of action
must arise from the defendant’s activities there. Finally, the acts of the defendant
or consequences caused by the defendant must have a substantial enough
connection with the forum state to make the exercise of jurisdiction over the
defendant reasonable.

Bird, 289 F.3d 865, 874 (6th Cir. 2002) (quoting Southern Machine Co. v. Mohasco Indus., Inc.,
401 F.2d 374, 381 (6th Cir. 1968)). Ancestry’s contacts, as alleged in Wilson’s Complaint, satisfy
all three conditions.
i. Purposeful availment
Ancestry argues that Wilson’s Complaint fails to satisfy the first factor because Wilson
only alleges the following:
Ancestry (a) hosted a universally-accessible website, including to those who
happened to reside in Ohio; (b) “advertise[d]” its services through the same
universally-accessible website; and (c) plaintiff and some putative class members,
who happen to be Ohio residents, had their names and images “misappropriated.”

(Mot. to Dismiss, ECF No. 13, p. 12.) After providing this summary of Wilson’s allegations,
Ancestry directs the Court’s attention to several cases within this Circuit holding that the mere
maintenance of a website accessible from within the forum, without more, does not constitute
purposeful availment. (Id. at pp. 12-13 (citing, inter alia, See, Inc. v. Imago Eyewear Pty, Ltd., 167
F. App’x 518, 523 (6th Cir. 2006).)
This Court agrees with Ancestry’s statement of the law: “Courts generally agree that
maintaining a website accessible from within the forum state is not, by itself, sufficient to establish
specific personal jurisdiction.” Stewart v. M & M Headgear, Inc., No. 5:14 CV 857, 2015 U.S.
Dist. LEXIS 39720, at *11 (N.D. Ohio Mar. 27, 2015). But Ancestry misreads Wilson’s
Complaint.
“The operation of an Internet website can constitute the purposeful availment of the
privilege of acting in a forum state under the first Mohasco factor ‘if the website is interactive to
a degree that reveals specifically intended interaction with residents of the state.’” Bird, 289 F.3d
865, 874 (6th Cir. 2002) (quoting Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 890
(6th Cir. 2002) (finding that defendants met the purposeful availment requirement where they
maintained a website on which Ohio residents could register domain names and accepted the
business of more than 4,000 Ohio residents)). Ancestry.com, as Wilson alleges, is such a website.
Wilson’s Complaint states that Ancestry displays Ohio yearbook photographs in advertisements
directed to Ohio residents, noting that these photographs originated from yearbooks or other
sources located in Ohio. (Compl. ¶ 21, ECF No. 1.) The Complaint further notes that Ancestry has
a database containing millions of records about Ohio residents (Id. at ¶¶ 20, 48), and Ancestry
allegedly uses some of these records (i.e., yearbook photographs) to solicit subscriptions by

promising users, such as Wilson and the proposed class members’ families, the ability to create
and grow a “family tree”—a family tree that reasonably might include Ohio residents. (Id. at ¶¶
21, 34-36; Pl. Opp’n, ECF No. 29, p. 4.)
Ancestry, however, argues that its advertisements using Wilson and the proposed class
members’ yearbook photos are not “targeted to users located in Ohio” because any user, including
those residing outside of Ohio, can view the advertisements as long as they submit the appropriate
search criteria. (Mot. to Dismiss, ECF No. 13, p. 13-14.) The Court is not persuaded, and, indeed,
this same argument has been rejected by other courts. See Sessa v. Ancestry.com Operations Inc.,
561 F. Supp. 3d 1008, 1025-1026 (D. Nev. Sept. 16, 2021); Bonilla v. Ancestry.com Operations
Inc., 574 F. Supp. 3d 582, 590 (N.D. Ill. Dec. 7, 2021). Analysis from the Sessa decision is

particularly persuasive on this point:
Ancestry contends it cannot be charged with knowledge that it aimed its activities
at Nevada.

The Court disagrees. Plaintiffs allege that Ancestry’s database includes 1.7 million
individual records from yearbooks of Nevada schools. Even if a substantial
percentage of the individuals in Ancestry’s database have moved from the state, it
strains credulity that Ancestry would not know that, by creating a commercial
database of many millions of Americans, over one million of whom went to school
in Nevada, a substantial market for the database would be persons residing in
Nevada. 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.

Sessa, 561 F. Supp. 3d 1008, 1025-1026 (D. Nev. Sept. 16, 2021) (emphasis added) (internal
citations omitted). The Sessa plaintiffs’ allegations that Ancestry created a commercial database
containing almost 2 million individual records from yearbooks of Nevada schools were critical to
the court’s finding that Ancestry deliberately targeted Nevada residents. Those same allegations,
but tailored to Ancestry’s activities in Ohio, are applicable here. (See Compl. ¶¶ 20-21, 48.) And
this Court, like the Sessa court, reaches a similar conclusion: Wilson’s allegations establish that

Ancestry intentionally targeted Ohio residents with its advertisements. Ancestry’s targeted
advertisements demonstrate “specifically intended interaction with residents of [Ohio],” thus
constituting “purposeful availment of the privilege of acting in a forum state[.]” See Bird, 289 F.3d
865, 874 (6th Cir. 2002).
ii. Arising from Ancestry’s activities in Ohio
Next, the Court must answer whether Wilson’s causes of action arise from Ancestry’s
contacts with Ohio. This is a “lenient standard” that asks “whether the causes of action are related
to or connected with the defendant’s contacts with the forum state.” Air Prods. & Controls, Inc. v.
Safetech Int’l, Inc., 503 F.3d 544, 553 (6th Cir. 2007) (citations omitted). Wilson’s Complaint
satisfies this lenient standard.

As the Court discussed above, Wilson’s Complaint alleges that his causes of action arise
from Ancestry’s non-consensual use of Wilson’s name and yearbook photographs, which
originated in Ohio, to solicit subscriptions from Ohio residents. These allegations, when viewed
under the “lenient standard” applicable to the “arising from” criterion, lead the Court to conclude
that Wilson’s claims arise from Ancestry’s activities in Ohio. See Bird, 289 F.3d 865, 875 (6th
Cir. 2002).
iii. Reasonableness
The last due process consideration requires that the exercise of jurisdiction be reasonable
in light of the alleged connection between Ancestry and Ohio. See id. Because Wilson has satisfied
the first two conditions of the due process analysis, “[a]n inference arises that the third factor is
satisfied[.]” Id. To overcome this inference, Ancestry must “present a compelling case that the
presence of some other considerations would render jurisdiction unreasonable.” Am. Greetings
Corp. v. Cohn, 839 F.2d 1164, 1168 (6th Cir. 1988) (citing Burger King Corp. v. Rudzewicz, 471

U.S. 462, 477 (1985)). Courts may consider, among other things, the defendant’s burden, the forum
state’s interest, and the plaintiff’s interest in obtaining relief. Bird, 289 F.3d 865, 875 (6th Cir.
2002).
Here, Ancestry’s motion does not address the “reasonableness” factor. But even if Ancestry
had argued that it would face a burden having to defend this action in Ohio, it would not be
unreasonable given that Ancestry allegedly targeted Ohio residents with the offending
advertisements. Ohio also has an interest in protecting the publicity rights of its citizens, and
Wilson and those in the proposed class, who are all Ohio residents, have an interest in obtaining
relief.
For all of the foregoing reasons, the Court finds that Wilson has established a prima facie

case that Ancestry is subject to specific jurisdiction in Ohio.
B. Standing
Ancestry also asserts that Wilson lacks Article III standing to pursue his statutory and
common law claims. This assertion is without merit.
“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and
‘Controversies.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting U.S.
CONST., art. III, § 2). This limitation requires the party seeking relief to have standing. Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 101-04 (1998). To have standing under Article III, the
party must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,
Inc. v. Robins, 578 U.S. 330, 338 (2016). The plaintiff bears the burden of establishing each
element, and the district court must accept all factual allegations in the complaint as true. Id.;
Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012).

Ancestry’s motion only takes issue with the first element—that Wilson suffer an injury in
fact. This element requires Wilson’s injury be “concrete”—i.e., “real, and not abstract.”
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021). In determining whether an injury is
concrete, “courts should assess whether the alleged injury to the plaintiff has a ‘close relationship’
to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” Id.
(quoting Spokeo v. Robins, 578 U. S., 330, 341 (2016)). This inquiry “asks whether plaintiffs have
identified a close historical or common-law analogue for their asserted injury.” Id.
Here, accepting as true the allegations in the Complaint, Wilson has adequately established
injury in fact for his Ohio right of publicity claim under R.C. § 2741 and his analogous common
law invasion of privacy claim. See James, 855 N.E.2d 119, 122 n.2 (2006) (noting also that Ohio’s

codified right of publicity does not supplant common law invasion of privacy). Wilson alleges
injury from Ancestry’s misappropriation of his persona for the purpose of promoting paid
subscriptions. (Compl. ¶¶ 18, 21-22, 44, 61, ECF No. 1.) Such an injury has traditionally been
recognized at common law. See Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619, 622 (6th Cir.
2000) (“The right of publicity is a creature of state common law and statute and originated as part
of the common-law right of privacy.”) (Citing Zacchini v. Scripps-Howard Broad. Co., 433 U.S.
562 (1977); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 930 (6th Cir. 2003) (citing approvingly
to Restatement (Third) of Unfair Competition, § 46, cmt. a, which notes that both statute and
common law recognize the right of publicity). Accordingly, taking Wilson’s allegations as true
that Ancestry, without Wilson’s consent, used his persona for a commercial purpose in violation
of Ohio’s right of publicity, Wilson suffered an injury in fact.
Ancestry does not challenge the remaining two standing elements—causation and
redressability, nor should it. Both elements are satisfied here. Wilson’s Complaint alleges that

Ancestry used Wilson and the proposed class members’ personal information and their yearbook
photos to promote paid subscriptions to Ancestry’s website without their consent, violating their
publicity rights. (Compl. ¶ 1, ECF No. 1.) A favorable ruling would redress their injury by
compensating them for the use of their personas in advertising and/or enjoining Ancestry from
such further use. As such, Wilson and the proposed class have standing to bring their claims before
this Court.
C. Wilson Properly Pleads His Claims
Ancestry also argues that Wilson’s Complaint fails to plausibly state his right of publicity
claims. As an initial matter, the Court will briefly set forth Wilson’s claims. Wilson first claims a
violation of his right of publicity under R.C. § 2741. Under Ohio’s right of publicity statute, “a

person shall not use any aspect of an individual’s persona for a commercial purpose” unless “[t]he
person first obtains written consent[.]” Ohio Rev. Code § 2741.02(A)-(B). “[P]ersona” means “an
individual’s name, voice, signature, photograph, image, likeness, or distinctive appearance, if any
of these aspects have commercial value.” Ohio Rev. Code § 2741.01(A). As for Wilson’s
analogous common law claim, a defendant is subject to liability when he appropriates to his own
use or benefit the name or likeness of another, and the name or likeness has commercial or other
value. Roe v. Amazon.com, 714 F. App’x 565, 568 (6th Cir. 2017).
The Court also notes that because “case law on the [right of publicity] is exceedingly rare,”
and due to the interest of maintaining nationwide uniformity on this right, “courts typically give
attention to the entire available body of case law when deciding right of publicity cases.” Landham,
227 F.3d 619, 622-23 (6th Cir. 2000).
Returning to Ancestry’s motion, Ancestry provides three bases for arguing that Wilson’s
Complaint does not plausibly plead his claims: (1) Wilson fails to allege that his name or likeness

had any commercial value when misappropriated, a requirement of both of his claims; (2) the
alleged “use” of Wilson’s name and image were nothing more than incidental to Ancestry’s
operations, thus precluding Wilson’s claims; and (3) Wilson’s statutory claim falls within multiple
statutory exemptions. (Mot. to Dismiss, ECF No. 13, pp. 22-25.) The Court will address each basis
in turn.
a. Wilson plausibly alleges commercial value
Ancestry argues that Wilson has failed to plausibly allege that his name and likeness has
any commercial value. Ancestry argues that Wilson alleges “only that Ancestry ‘used’ his name
and image to preview the existence of his yearbook record on its website,” and that any alleged
value from this use came from “Ancestry’s ability to offer access to his and other public records,”

which “is not enough.” (Id. at 20 (citing Vinci v. Am. Can Co., 69 Ohio 591 N.E.2d 793, 794 (Ohio
Ct. App. 1990).)
Ancestry’s reliance on Vinci requires closer examination. The plaintiff in Vinci, an
Olympic gold medalist representing a class of Olympic athletes, alleged that defendants violated
his right of publicity by using his name and likeness on a series of promotional disposable drinking
cups sold as Dixie Cups. Vinci, 69 Ohio 591 N.E.2d 793, 793 (Ohio Ct. App. 1990). In addressing
plaintiff’s sole assignment of error—that the trial court erred in granting summary judgment in
favor of defendants—the court began by setting forth the standard for invasion of privacy by
appropriation:
The fundamental wrong is the appropriation of a person’s name, likeness, or
identity for one’s own benefit whether or not that benefit is pecuniary.
. . .
The value of the plaintiff’s name is not appropriated by mere mention of it, or by
reference to it in connection with legitimate mention of his public activities; nor is
the value of his likeness appropriated when it is published for purposes other than
taking advantage of his reputation, prestige, or other value associated with him, for
purposes of publicity.
. . .
It is only when the publicity is given for the purpose of appropriating to the
defendant’s benefit the commercial or other values associated with the name or the
likeness that the right of privacy is invaded. The fact that the defendant is engaged
in the business of publication, for example of a newspaper, out of which he makes
or seeks to make a profit, is not enough to make the incidental publication a
commercial use of the name or likeness.

Id. at 793-94 (cleaned up) (emphasis added). Following this recitation of the governing law, the
court affirmed the trial court’s judgment, holding that defendants’ references to the Olympic
athletes were “purely informational,” “merely incidental,” and therefore unactionable. Id. at 794.
Ancestry’s attempt to liken its operations to those of the defendants in Vinci is misplaced.
See id. at 794. Whereas the Vinci defendants’ use of the Olympic athletes’ name and likeness was
“purely informational,” Ancestry’s alleged use of Wilson and the proposed class members’
personas “was for the purpose of appropriating to the defendant’s benefit the commercial or other
values associated with the name or the likeness”—which is enough. See id. at 794. Ancestry’s
advertisements directly use Wilson’s persona when soliciting paid subscriptions. Ancestry
publicly displays Wilson’s yearbook photo alongside an on-screen message promising the user
that “[t]here’s more to see” about Wilson while also prompting the user to “Sign Up Now” for a
paid subscription. (Compl. ¶¶ 34-35, ECF No. 1.) Ancestry also provides access to Wilson’s
persona through the two-week “free trial” and informs users that they must purchase a paid
membership if they wish to continue accessing Wilson’s personal information. (Id. at ¶¶ 39-40.)
And Ancestry uses Wilson’s persona when sending targeted promotional emails to potential
subscribers. (Id. at ¶ 37-39.) Ancestry’s practice of using Wilson’s persona to solicit paid
subscriptions plausibly demonstrates that Wilson’s persona has commercial value.
Other courts, including the Sixth Circuit, agree. See Landham, 227 F.3d 619, 624 (6th Cir.
2000) (“The defendant’s act of misappropriating the plaintiff’s identity, however, may be

sufficient evidence of commercial value.”); Kellman v. Spokeo, Inc., No. 3:21-cv-08976-WHO,
2022 U.S. Dist. LEXIS 71985, at *19 (N.D. Cal. Apr. 19, 2022) (applying Ohio law) (finding that
plaintiff adequately pleaded commercial value “because [defendant] uses [plaintiff’s] persona for
commercial gain—that is, to incentivize people to subscribe—it reasonably implies that his
persona does have at least some commercial value”); Kolebuck-Utz v. Whitepages Inc., No. C21-
0053-JCC, 2021 U.S. Dist. LEXIS 77300, at *3-5 (W.D. Wash. Apr. 22, 2021) (applying Ohio
law) (holding that plaintiff established that her persona has commercial value where defendant
used plaintiff’s name and identifying information to entice users to purchase defendant’s
subscription service).
All told, Wilson’s Complaint plausibly alleges that there is some value in associating

Ancestry.com with his identity; as such, Wilson has adequately alleged that his persona has
commercial value.
b. Ancestry’s use of Wilson’s persona was not incidental
Ancestry also argues that Wilson’s Complaint demonstrates that Ancestry’s use of
Wilson’s name and likeness was merely incidental, which is insufficient for a right of publicity
claim.
Where the defendant’s use of the plaintiff’s name or likeness is incidental, the plaintiff
does not have an actionable right of publicity claim. Roe, 714 F. App’x 565, 568 (6th Cir. 2017)
(citing Vinci, 591 N.E.2d 793, 794 (Ohio Ct. App. 1990)). To be more than incidental, “the
Defendant must appropriate the name or likeness of another for the reputation, prestige, social or
commercial standing, public interest, or other values associated with that likeness.” Stringer v.
Richard, No. 4:21-cv-00632, 2022 U.S. Dist. LEXIS 149572, at *11 (N.D. Ohio Aug. 19, 2022).
Here, as explained in the previous subsection, Ancestry appropriated Wilson’s name and

likeness for its commercial value in promoting paid subscriptions. Indeed, Wilson’s image and
personal information were central to Ancestry’s advertising materials. And other courts have
reached the same conclusion on similar facts. In Kellman, the Northern District of California
rejected defendant’s argument that its use of plaintiffs’ names and likenesses in online
advertisements was merely incidental. 2022 U.S. Dist. LEXIS 71985, at *28. There, the defendant
advertised its website by displaying “teaser profiles” of individuals that included a variety of
personal information and sometimes photographs, and if a user purchased a subscription, the user
would have access to the “full profile” of the individual. Id. at *3-4. In holding that it was plausible
that defendant’s use of plaintiffs’ personal information was more than incidental, the court stressed
that “[defendant’s] business model depends on using the names, information, and likenesses of

average people to entice others to subscribe to its services.” Id. at *28-29.
The Western District of Washington reached the same conclusion in Kolebuck-Utz, 2021
U.S. Dist. LEXIS 77300 (W.D. Wash. Apr. 22, 2021). In Kolebuck-Utz, the defendant owned and
operated a website selling background reports and monthly subscription services to access such
reports. Id. at *1. To entice users to subscribe, defendant allowed users to search for a person using
that person’s name and then defendant provided access to a free preview of the searched person’s
background report. Id. at *1-2. Upon viewing the free report, defendant’s website prompted users
to click on “View Full Report,” “Unlock Full Report,” or “Sign Up,” all of which invited the user
to purchase a monthly subscription. Id. at 2. Plaintiff alleged that defendant used her name and
likeness in its free previews and advertisements to “entice users to purchase [defendant’s]
services.” Id. In focusing on defendant’s use of plaintiff’s name to entice users to purchase
defendant’s product, the court rejected any suggestion that defendant’s use was merely incidental.
Id. at 5.

The Sessa court, facing a complaint largely mirroring the one before this Court, also
indicated that Ancestry’s use of the plaintiffs’ names and likenesses was more than incidental. 561
F. Supp. 3d 1008 (D. Nev. Sept. 16, 2021). In Sessa, Ancestry argued for dismissal of plaintiffs’
statutory right of publicity claims based upon Nevada’s commercial sponsorship exemption. 561
F. Supp. 3d at 1028-29. This exemption precludes a right of publicity claim if the defendant’s
commercial use of the plaintiff’s persona “is contained in material which is commercially
sponsored but the use is not directly connected with the commercial sponsorship.” Nev. Rev. Stat.
Ann. § 597.790(2)(A). The Court rejected Ancestry’s assertion that its use of Plaintiffs’ names and
images was “incidental to any commercial sponsorship,” finding that: (1) Ancestry’s use of
Plaintiffs’ names and likenesses in its promotional emails was “directly connected” to Ancestry’s

advertising; and (2) Ancestry’s use of Plaintiffs’ names and images within the trial access period,
which indicated that Ancestry was “trading off the value of customers searching for Plaintiffs’
names in order to entice them into purchasing a subscription,” was “directly connected to
Ancestry’s commercial sponsorship.” Sessa, 561 F. Supp. 3d at 1030.
Bearing in mind the standard articulated in Roe and Stringer, and against the backdrop of
multiple decisions pointing in the same direction, this Court finds that Ancestry’s use of Wilson’s
persona, as alleged in his Complaint, is more than incidental—that is, Ancestry’s appropriation of
his persona for the purpose of promoting paid subscriptions establishes Ancestry’s deliberate, and
not incidental, use of Wilson’s persona.
Before concluding this section, the Court will clarify an issue raised in Ancestry’s brief:
whether Ohio’s right of publicity has a “false endorsement” or “support” element. Ancestry takes
the position that its use of Wilson’s persona is incidental unless the use suggests Wilson “uses,
supports, or promotes” Ancestry. (Mot. to Dismiss, ECF No. 13, pp. 23-24; Def. Reply, ECF No.

33, pp. 11-12.) In other words, Wilson must show that Ancestry used his persona in a way that
suggests Wilson “uses, supports, or promotes” Ancestry’s products; otherwise, Ancestry’s use of
his persona is merely incidental.
Ancestry’s position neither comports with R.C. § 2741 nor the case law interpreting Ohio’s
right of publicity. Beginning with the statute, it prohibits the “use [of] any aspect of an individual’s
persona for a commercial purpose” without “written consent.” Ohio Rev. Code § 2741.02. Notably
absent from this statute is any language requiring that plaintiff impliedly use, support, or endorse
defendant’s good or service. And R.C. § 2741.02(A)(6) suggests there is no “false endorsement”
requirement; this provision exempts from liability any use of a persona “protected by the First
Amendment to the United States as long as the use does not convey or reasonably suggest

endorsement by the individual whose persona is at issue.” Ohio Rev. Code § 2741.02(A)(6)
(emphasis added). If R.C. § 2741 already imposes a false endorsement requirement, then this carve
out would be mere surplusage. Put differently, it would be unnecessary to include this language
because any use of an individual’s persona that does not convey or reasonably suggest
endorsement would already fall outside the statute.
Next, Ohio case law confirms the Court’s understanding of Ohio’s right of publicity. See
Landham, 227 F.3d 619, 624 n.1 (6th Cir. 2000) (“the right of publicity isn’t aimed at or limited
to false endorsements….”) (quotation omitted); Parks v. LaFace Records, 329 F.3d 437, 460 (6th
Cir. 2003) (“publicity rights offer substantially broader protection than laws preventing false
endorsement”) (quotation omitted); Bosley, 310 F. Supp. 2d 914, 925 (N.D. Ohio 2004) (discussing
what constitutes promotional material as it relates to the infringement of one’s right of publicity:
“Proof that prospective purchasers are likely to believe that the identified person endorses or
sponsors the user’s goods or services is not required for the imposition of liability”). In sum, a

plain reading of R.C. § 2741, coupled with Ohio case law, establish that a plaintiff bringing a right
of publicity claim need not show that the defendant used his or her persona in a way that suggests
the plaintiff “uses, supports, or promotes” the defendant’s goods or services.
c. R.C. § 2741’s statutory exceptions
Ancestry also argues that its use of Wilson’s persona falls within the “literary” and
“historical work” exception under R.C. § 2741.09(A)(1)(a), (d) and the public affairs exception
under R.C. § 2741.02(D)(1) and R.C. § 2741.09(A)(1)(b), (A)(3). (Mot. to Dismiss, ECF No. 13,
pp. 24-25.) Wilson argues—and the Court agrees—that these exceptions are inapplicable to
Ancestry’s conduct.
i. Ancestry’s advertisements are not “literary” or “historical” works

Ancestry contends that Wilson’s claim falls into the exception for a “literary work” or
“historical work, . . . regardless of the media in in which the work appears or is transmitted,” or an
“advertisement or commercial announcement” for such a literary or historical work. (Id. quoting
Ohio Rev. Code § 2741.09(A)(1)(a), (d).) This statutory exception does not apply at this stage.
Ancestry frames Wilson’s claims challenging Ancestry’s mere reproduction and
distribution of his yearbook records. But Wilson’s Complaint states that it is not simply Ancestry’s
reproduction and distribution of Wilson’s yearbook photos that gives rise to his claims, but rather
Ancestry’s use of Wilson’s persona to promote a paid subscription service offering much more
than just access to information contained in Wilson’s yearbook. (Compl. ¶¶ 4-8, ECF No. 1.) As
pleaded, a paid subscription not only provides access to a searched person’s personal information,
such as the person’s “city of residence, estimated age, [and] high school graduation,” but also
access to the searched person’s “yearbook photos, marriage records, baptism records, death
certificates, divorce records, photographs of grave sites, and other[]” records. (Id. at ¶¶ 5-6.)

Furthermore, a paid subscription provides users with “a wide range of services, including the
ability to: ‘Grow a family tree with exclusive search tools’; ‘Connect with fellow members’;
‘Access 15+ billion records’ from the U.S.; ‘Expand your search with 3+ billion worldwide
records’; ‘Find stores among 142+ million pages in the Newspapers.com Basic subscription’;
‘Explore 537+ million original military records on Fold3.com’; and ‘Enjoy premium support with
a dedicated 1-800 number.’” (Id. at ¶ 10.) The crux of Wilson’s Complaint is Ancestry’s use of
Wilson’s persona to promote paid subscriptions offering a wide variety of Ancestry’s products and
services. Under a plain reading of Ohio’s right of publicity statute, such paid subscriptions and
their advertisements are neither “literary” nor “historical” works. It follows, at least at the
pleadings stage, that R.C. § 2741’s “literary” and “historical” work exceptions do not shield

Ancestry from liability.
ii. The public affairs exceptions do not apply
Ancestry also argues that its advertisements are exempt because they are matters of public
affairs. The Court disagrees.
Ohio’s right of publicity statute exempts: (1) “use of an aspect of an individual’s persona
in connection with any news, public affairs, sports broadcast or account”; (2) “[m]aterial that has
political or newsworthy value”; and (3) “use of an aspect of an individual’s persona in connection
with the broadcast or reporting of an event or topic of general or public interest.” Ohio Rev. Code
§§ 2741.02(D)(1); 2741.09(A)(1)(b), (A)(3). Under these statutory exceptions, “use of a person’s
identity primarily for the purpose of communicating information . . . is not generally actionable as
a violation of the person’s right of publicity.” Harvey, 154 N.E.3d 293, 308 (Ohio Ct. App. 2020).
Here, Ancestry’s motion focuses almost exclusively on answering the question of whether
a yearbook falls under the public affairs exception. But Ancestry, once again, improperly frames

Wilson’s Complaint as arising solely from Ancestry’s reproduction and distribution of Wilson’s
yearbook. If this were the extent of Wilson’s Complaint, then the public affairs exception might
be applicable—but it is not. It is Ancestry’s use of Wilson’s persona in connection with the
promotion of paid subscriptions—not the reproduction and distribution of Wilson’s yearbook—
that gives rise to his claim. Under this framing, Ancestry’s use of Wilson’s persona to promote
paid subscriptions cannot conceivably fall under R.C. § 2741’s public affairs exceptions, thus
rendering the public affairs exceptions inapplicable. See Callahan v. PeopleConnect, Inc., No. 20-
cv-09203-EMC, 2021 U.S. Dist. LEXIS 210857, at *51 (N.D. Cal. Nov. 1, 2021) (rejecting similar
argument, stating “only reprinted yearbooks potentially have a public affairs connection; the
subscription membership clearly does not”); Martinez v. ZoomInfo Techs. Inc., No. C21-5725

MJP, 2022 U.S. Dist. LEXIS 66673, at *15-16 (W.D. Wash. Apr. 11, 2022) (finding California’s
public interest exception inapplicable where defendant used plaintiff’s persona to advertise
subscriptions to defendant’s website despite defendant operating a website that might concern
matters of public interest); Knapke v. PeopleConnect Inc., 553 F. Supp. 3d 865, 878 (W.D. Wash.
2021), rev’d on other grounds, 38 F.4th 824 (9th Cir. 2022) (applying Ohio law in finding that the
public affairs exception was inapplicable where defendant used plaintiff’s persona to sell
defendant’s subscription service). Accordingly, the Court rejects Ancestry’s argument.
D. Communications Decency Act
Ancestry additionally argues that it is entitled to immunity under section 230 of the
Communications Decency Act, 47 U.S.C. § 230(c)(1), which “immunizes providers of interactive
computer services against liability arising from content created by third parties.” Jones v. Dirty

World Entm't Recordings LLC, 755 F.3d 398, 406 (6th Cir. 2014). Section 230 provides that “[n]o
provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Thus,
to prevail on this defense, Ancestry must show that “(1) the defendant asserting immunity is an
interactive computer service provider, (2) the particular information at issue was provided by
another information content provider, and (3) the claim seeks to treat the defendant as a publisher
or speaker of that information.” Jones, 755 F.3d 398, 409 (6th Cir. 2014). “By contrast, a defendant
is not entitled to protection from claims based on the publication of information if the defendant
is ‘responsible, in whole or in part, for the creation or development of [the] information.” Id. (citing
47 U.S.C. § 230(f)(3) (defining “information content provider”)).

Here, Ancestry cannot rely on section 230 for immunity because it is an information
content provider of the allegedly unlawful content—that is, Ancestry is “responsible, in whole or
in part, for the creation or development” of the advertisements at issue. See id. In Jones, the Sixth
Circuit declared that a website provider, such as Ancestry, “helps to develop unlawful content, and
thus fall within the exception to section 230, if it contributes materially to the alleged illegality of
the conduct.” Id. at 410 (emphasis in original) (quoting Fair Hous. Council v. Roommates.com,
LLC, 521 F.3d 1157, 1167-68 (9th Cir. 2008)). A contribution is “material,” if the contributing
party is “responsible for what makes the displayed content allegedly unlawful.” Id. Thus, because
the alleged unlawful content consists of Ancestry’s advertisements using Wilson’s persona to
promote paid subscriptions, and Ancestry is responsible for the development of these
advertisements, Ancestry materially contributed to the alleged unlawful content and therefore
cannot use section 230 to shield itself from liability. See Bonilla, 574 F. Supp. 3d 582, 592 (N.D.
Ill. 2021) (“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”; “These allegations, taken as true, do not establish that Ancestry
is a ‘passive conduit’ that should receive immunity under the CDA”); Knapke, 553 F. Supp. 3d
865, 875 (W.D. Wash. 2021) rev’d on other grounds, 38 F.4th 824 (9th Cir. 2022) (“The offending
content is generated by [defendant] and the advertisement is not merely some passive display of
content created by another entity, even if it contains a picture from a school yearbook. In this
context, [defendant] is the content creator and not entitled to immunity under the CDA.”).
E. Copyright Preemption
Ancestry’s final affirmative defense asserts that section 301 of the Copyright Act preempts
Wilson’s right of publicity claims. (Mot. to Dismiss, ECF No. 13, pp. 29-31.) There is no merit to

this argument.
Section 301 of the Copyright Act preempts “all legal and equitable rights that are
equivalent to any of the exclusive rights within the general scope of copyright as specified by
section 106” and are “in a tangible medium of expression and come within the subject matter of
copyright as specified by sections 102 and 103.” 17 U.S.C. § 301(a). In other words, for the
Copyright Act to preempt a state-law claim, the claim must (1) involve a work within the “subject
matter of copyright”—that is, the intellectual property at issue must be eligible for copyright
protection; and (2) the underlying state-law claim must be “equivalent to any of the exclusive
rights” within the scope of federal copyright protection. Wright v. Penguin Random House, 783 F.
App'x 578, 582 (6th Cir. 2019) (citing Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453-54 (6th
Cir. 2001) and Stromback v. New Line Cinema, 384 F.3d 283, 301 (6th Cir. 2004)).
Wilson’s right of publicity claims do not satisfy the subject matter requirement. Ancestry
contends that Wilson’s claims fall within the subject matter of copyright because his claims arise

solely from Ancestry’s distribution and display of the copyrighted yearbook. But this is
inconsistent with Wilson’s Complaint. The Complaint makes it clear that the alleged unlawful
conduct was not the reproduction and distribution of Wilson’s yearbook photos, but rather
Ancestry’s use of Wilson’s name and likeness in advertisements promoting paid subscriptions to
Ancestry.com. (Compl. ¶¶ 5-8, 18-19, 32-40, 50, 57, 65, ECF No. 1.) Such use does not fall within
the subject matter of the Copyright Act. See Downing v. Abercrombie & Fitch, 265 F.3d 994,
1004-05 (9th Cir. 2001) (holding that a “person’s name or likeness” does not come within sections
102 or 103 of the Copyright Act).
Ancestry analogizes this case to the facts in Maloney v. T3Media, Inc., 853 F.3d 1004 (9th
Cir. 2017). (Mot. to. Dismiss, ECF No. 13, pp. 30-31; Reply, ECF No. 33, p. 18.) But Ancestry’s

reliance is misplaced. Maloney involved a suit by two former student-athletes against T3Media,
which contracted with the NCAA to store, host, and license images in the NCAA Photo Library
(an online photo library containing decades worth of NCAA sports history). 853 F.3d at 1007.
Consumers could view thumbnails of the collection on T3Media’s website, and for a fee,
consumers could download a copy of a chosen photograph solely for personal use. Id. Some of the
photos in the NCAA Photo Library captured the plaintiffs following their victory in the Division
III men’s basketball championship. Id. The plaintiffs sued T3Media for violating their right of
publicity, and T3Media prevailed on its Anti-SLAPP motion strike, which argued that the
Copyright Act preempted the plaintiffs’ claims. Id. at 1008-09. The Ninth Circuit presented the
preemption issue as a question of “deciding when a publicity-right claim seeks to vindicate misuse
of an individual’s likeness, as opposed to merely interfering with the distribution, display, or
performance of a copyrighted work.” Id. at 1012-13 (emphasis in original). The court further
clarified the relationship between right of publicity claims and copyright preemption, stating:

[A] publicity-right claim may proceed when a likeness is used non-consensually on
merchandise or in advertising; but where a likeness has been captured in a
copyrighted artistic visual work and the work itself is being distributed for personal
use, a publicity-right claim is little more than a thinly-disguised copyright claim
because it seeks to hold a copyright holder liable for exercising his exclusive rights
under the Copyright Act.

Id. at 1016. In Maloney, because the plaintiffs’ claims “d[id] not contend that their likenesses were
ever used on merchandise or in advertising,” instead challenging only “the copyright holder’s
decision to distribute copyrighted images themselves,” section 301 of the Copyright Act preempted
their claims. Id. at 1011.
As Ancestry interprets Wilson’s Complaint, Wilson’s right of publicity claims do not
identify a use of Wilson’s name or likeness outside of Ancestry’s reproduction and distribution of
his yearbook information, and therefore, per Maloney, the Copyright Act preempts Wilson’s
claims. But Ancestry’s position is inconsistent with Wilson’s Complaint. In fact, the Ninth Circuit
decision in Downing—a case the Ninth Circuit distinguished from the facts in Maloney—more
closely mirrors the facts sitting before this Court.
In Downing, several surfers (“appellants”) had brought an action asserting state law
publicity claims against Abercrombie & Fitch following its publication of a subscription catalog
featuring photographs of appellants competing in the 1965 Makaha International Surf
Championship in Hawaii. Downing, 265 F.3d 994, 999-1000 (9th Cir. 2001). Abercrombie
included appellants’ names in the published photographs and created t-shirts like those worn by
appellants in the photographs, which were for sale in the catalog. Id. at 1000. Abercrombie did not
obtain appellants’ permission. Id. Abercrombie, framing appellants’ complaint as arising from the
unlawful reproduction and publication of the photographs, took the position that the Copyright Act
preempted their state law claims. Id. at 1003. But the Ninth Circuit rejected this recasting of
appellants’ claims: “it is not the publication of the photograph itself, as a creative work of

authorship, that is the basis of Appellants’ claims, but rather, it is the use of the Appellants’
likenesses and their names pictured in the published photograph.” Id. After surveying caselaw
from multiple jurisdictions, and after consulting several treatises discussing the relationship
between copyright law and right of publicity claims, the court held that, despite the photographs
being copyrightable, the Copyright Act did not preempt appellants’ claims because the subject
matter from which the claims arose was Abercrombie’s unauthorized use of appellants’ names and
likenesses to advertise Abercrombie’s products. Id. at 1003-04.
Here, Wilson’s claims concern Ancestry’s use of his name and likeness, not merely the
publication of Wilson’s yearbook photographs. Unlike Maloney, Ancestry does not simply offer a
database of photos that customers may download solely for personal use. Instead, Ancestry, like

Abercrombie in Downing, uses Wilson’s name and likeness to promote Ancestry’s products and
services. For example, Ancestry sends promotional emails bearing Wilson’s name and likeness to
unsubscribed users who Ancestry believes may be related to Wilson. (Compl. ¶¶ 37-38, ECF No.
1.) Likewise, when an unsubscribed user searches for Wilson, Ancestry provides Wilson’s
photograph accompanied by promotional text urging the user to “Sign Up Now” and a promise
that “There’s more to see” about Wilson if the user purchases a paid subscription. (Id. at ¶¶ 6, 34.)
As Downing and Maloney demonstrate, there is a distinction between a right of publicity claim
that merely seeks to interfere with the publication of a copyrightable work (as in Maloney) and a
claim that arises from the unauthorized use of the plaintiff’s persona for another’s commercial gain
(as in Downing). This case falls into the latter—that is, Wilson’s Complaint alleges that Ancestry
uses Wilson and the putative class members’ personas to Ancestry’s commercial advantage rather
than simply reproducing and distributing their yearbook photographs. Accordingly, the Copyright
Act does not preempt Wilson’s claims. See Sessa, 561 F. Supp. 3d 1008, 1033 (D. Nev. Sept. 16,

2021) (“Where, as here, the platform containing a plaintiff’s photograph sells information about
the plaintiff and not limited rights to his image alone, the Copyright Act will not preempt a claim
concerning the use of the image.”).
IV. CONCLUSION
For the reasons stated herein, the Court DENIES Ancestry’s Motion to Dismiss. (ECF No.
13.)
IT IS SO ORDERED.

1/31/2023 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10381724. Public record. Not legal advice.