Case filed in California
Where’s the line between making material available for genealogical research, and using private data for commercial gain?
A lawsuit filed in federal court in San Francisco on Monday may help define the answer to that question.
The case, brought by two California residents against Ancestry, focuses on the yearbook collection — “U.S., School Yearbooks, 1900-1999” — and charges Ancestry with “knowingly misappropriating the photographs, likenesses, names, and identities of Plaintiffs and the class; knowingly using those photographs, likenesses, names, and identities for the commercial purpose of selling access to them in Ancestry products and services; and knowingly using those photographs, likenesses, names, and identities to advertise, sell, and solicit purchases of Ancestry services and products; without obtaining prior consent from Plaintiffs and the class.”1
The suit goes on to claim that:
• “The names, photographs, cities of residence, schools attended, estimated ages, likenesses, and identities contained in the Ancestry Yearbook Database uniquely identify specific individuals.”2
• “Ancestry is knowingly using the names, photographs, and likenesses of Plaintiffs and the class to advertise, sell, and solicit the purchase of its subscription products and services.”3
• “Ancestry appropriated and continues to grow its massive databases of personal information, including its Ancestry Yearbook Database, which contains the names, photographs, cities of residence, schools attended, estimated ages, likenesses, and identities of tens of millions of Californians. Ancestry uses these records both as the core element of its products and services, and to sell and advertise its products and services, without providing any notice to the human beings who are its subjects. Ancestry did not ask the consent of the people whose personal information and photographs it profits from. Nor has it offered them any compensation for the ongoing use of their names, photographs, likenesses, and identities as part of its products and services, and to sell and advertise its products and services.”4
And this conduct, the suit alleges, violates a whole bunch of California statutes: “the California right to publicity as codified in Cal. Civ. Code § 3344; the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.; California’s common law right protecting against Intrusion upon Seclusion; and California Unjust Enrichment law.”5
Both plaintiffs are included in the yearbook database:
Plaintiff Lawrence Geoffrey Abraham asserted three records and claimed that “The three records corresponding to Mr. Abraham uniquely identify Mr. Abraham. All three plainly and conspicuously display Mr. Abraham’s name, image, photograph, estimated age, school, city of residence, and the date of the yearbook in which the photo appears. In two of the records Mr. Abraham’s face is the sole subject of the photograph. One of the records identifies school participation in the school track team.”6
Plaintiff Meredith Callahan asserted that the database included 26 records that “uniquely identify Ms. Callahan. All plainly and conspicuously display Ms. Callahan’s name, image, photograph, estimated age, school, city of residence, and the date of the yearbook in which the photo appears. In four of the records Ms. Callahan’s face is the sole subject of the photograph. In all twenty-six records she is clearly identifiable by name and image. Various of the records identify Ms. Callahan’s school participation in student council, cross country running, track, “Students Against Drunk Driving, “Quiz Bowl,” the National Honors Society, and ski club. One record identifies her as a valedictorian of her senior class.”7
The essential argument the lawsuit makes it that “Ancestry did not and does not seek consent from, give notice to, or provide compensation to Plaintiffs and the class before placing their personal information in its Ancestry Yearbook Database, selling that information as part of its subscription products, and using that information to sell, advertise, and solicit the purchase of its subscription products.”8
The case is filed as a prospective class action. That means, if the court permits it, these two plaintiffs will be allowed to represent the entire class of people who are California residents, included in the database, and who didn’t give permission for their images to be included in the database.
And the relief sought is a permanent order barring the use of the images plus damages and attorneys’ fees.
So… what’s the outlook here?
The dividing line between the right of personal privacy for living people and access to information that is generally available is fuzzy at best, and a constantly moving target as online access to data and information continues to grow and expand.
We just don’t know, right now, whether a yearbook you can view and even copy at a library in the town where the school was located can be legally digitized, put online and — part of the complaint in this case — used as a teaser for a commercial service.
We don’t know, as yet, whether the law gives someone like these plaintiffs the right to complain if — say — the same yearbook was digitized and put online by the school itself.
So the case offers the first real opportunity to see where the line will be drawn — at least under the generally more-restrictive privacy laws of California — and whether those California laws will control access to information beyond California’s borders.
Cite/link to this post: Judy G. Russell, “Ancestry sued for yearbooks,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 2 Dec 2020).