The Northern District of Ohio recently granted summary judgment to Ancestry.com in a putative class action asserting that Ancestry.com violated plaintiff’s rights to publicity and privacy by using his yearbook photos in marketing materials without consent. See Wilson v. Ancestry.com, 2024 WL 3992356 (N.D. Ohio Aug. 27, 2024).
While the court had rejected the defendant’s motion to dismiss for lack of standing and failure to state a claim, it reversed course on both grounds at summary judgment based on uncontested evidence that that plaintiff’s image had never actually been used in the challenged marketing materials, except in response to a search by plaintiff’s own counsel.
The Court found that the “undisputed facts demonstrate that the underlying alleged conduct never occurred, which influences both whether an Article III injury has occurred and whether Wilson has failed to establish the elements of his claims.” As a result, plaintiff:
- “suffered no Article III injury because his persona was not used to promote paid subscriptions”; and similarly,
- “failed to establish elements of his claims because his persona was not misappropriated or used for a commercial purpose.”
The ruling underscores the importance of conducting an early plaintiff-specific investigation, which may present the opportunity for an early summary judgment motion.