Athlete NIL Pay Pulls Ancestry.com Into Ad Lawsuit
As college athletes pursue NIL compensation, other Americans are doing the same.
Earlier this month, a federal judge in Ohio refused to dismiss a lawsuit brought against Ancestry.com for using people’s NIL without permission when it pursues new subscribers.
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Ohio resident John Wilson has brought a proposed class action over the unauthorized use of yearbook photos, high school graduation year, city of residence, estimated age and other records that contain names, likenesses and related identifying attributes with commercial value.
Wilson, who is not an Ancestry subscriber, identifies several ways in which the genealogy company uses his identity to attract new subscribers. One is through promotional emails and onsite messages to individuals who may be related to him. Another is through a free trial membership providing access to biographical materials.
Ancestry maintains that Wilson’s lawsuit is without merit. The company says, for example, Wilson’s name and likeness lack commercial value. Offering access to public records about someone, the company contends, does not establish the person has commercial value.
In building its defense, Ancestry cites a 1990 case involving American weightlifter Charles Vinci, who earned gold medals at the 1956 and 1960 Olympics. He sued Minute Maid, Coca-Cola and other companies for using Olympic athletes’ NIL on Dixie Cups without permission as part of a partnership with the U.S. Olympic Committee. An Ohio court wasn’t convinced, reasoning that “the mention of the athletes’ names within the context of accurate, historical information” was “merely incidental” and “purely informational” to the cups’ promotion.
Judge Edmund Sargus deemed Vinci “misplaced” as applicable precedent. Whereas Dixie Cups’ reference to athletes’ NIL was informational, “Ancestry’s advertisements directly use Wilson’s persona when soliciting paid subscriptions.” He added that “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.” Sargus concluded that Wilson “plausibly demonstrates” his NIL possesses “commercial value.”
Sargus was similarly unpersuaded by Ancestry’s reliance on Maloney v. T3Media, where two former Catholic University basketball players unsuccessfully sued over photographs of the Cardinals winning the 2001 Division III national championship game. The NCAA owned the photographs and associated copyrights. It contracted with a media company to host and license the photos, charging customers $20 to $30 per download.
The basketball players didn’t claim their NIL was used for selling merchandise or advertising but insisted their right of publicity, which varies by state and encompasses NIL, was exploited. The Ninth Circuit sided against the players. The federal Copyright Act preempted the players’ claims since their NIL was embodied in copyrighted photographs and not used for advertising or merchandizing. Ancestry argues that Wilson’s claim suffers the same defect in that he doesn’t identify use of his NIL outside of Ancestry’s reproduction and distribution—just like T3Media had reproduced and distributed the basketball players’ NIL.
Sargus disagreed, writing that “unlike Maloney, Ancestry does not simply offer a database of photos that customers may download solely for personal use. Instead, Ancestry . . .uses Wilson’s name and likeness to promote Ancestry’s products and services.” He stressed that when Wilson is the subject of a search on Ancestry by a non-subscriber, “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.”
Sargus found a more analogous case in Downing v. Abercrombie & Fitch. A handful of surfers sued the clothing company for publishing a subscription catalog that featured them, along with their names, competing in the 1965 Makaha International Surf Championship in Hawaii. The catalog sold T-shirts like ones worn by the surfers. The Ninth Circuit rejected a preemption defense since it was “not the publication of the photograph itself” serving as the basis of the surfers’ claim but instead the commercial use of their NIL.
“As Downing and Maloney demonstrate,” Sargus reasoned, “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) . . . [Wilson] 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.”
While Wilson’s case has advanced past a motion to dismiss, Ancestry could prevail later in the litigation. Still, the case is a reminder that though NIL and related IP rights are a current focus in college sports, more ordinary Americans can use the same principles to demand compensation for online use of their identities.
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