IP Law Daily, COPYRIGHT—N.D. Cal.: Genealogy company’s motion to dismiss partly granted in case involving high school yearbook images, (Mar 19, 2026)

By Carolin Dennis, B.Sc., LL.B., LL.M.

A motion to dismiss a suit against Ancestry, owner of Ancestry.com, was partially granted in a case alleging it used names and likenesses of students and teachers without authorization.

The U.S. District Court for the Northern District of California denied in part and granted in part a genealogy company’s motion to dismiss the first amended complaint of a former high school teacher from California and the proposed class she represents under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The federal district court dismissed the misappropriation claims as to the first and third theories and the Unfair Competition Law (UCL) claim for lack of statutory standing (Gehringer v. Ancestry.com Operations Inc., No. 3:25-cv-05974-AMO (N.D. Cal. Mar. 16, 2026)).

Background. Ancestry.com Operations Inc. (Ancestry) is the primary US operating entity for Ancestry, the world’s largest for-profit genealogy company. It provides online family history services, historical records, DNA testing, and offers subscriptions to explore heritage. The website, Ancestry.com, provides subscription services that allow users to access a number of features, such as the ability to “grow a family tree with exclusive search tools,” “connect with fellow members,” and “access 15+ billion records” to spread the branches of that family tree. Ancestry includes a database of yearbook photos and identifying information, which it licenses from third parties to present on its site. The plaintiffs are individuals who have not subscribed to the Ancestry.com service and have not consented to the use of their name or photograph. They allege that Ancestry not only includes their yearbook information on a searchable database but also utilizes their likenesses as part of advertisements for Ancestry.com services.

Article III standing. The district court noted that the plaintiffs’ claim under Section 3344 of the California Civil Code is analogous to the fourth kind of privacy tort—misappropriation of the plaintiff’s name or likeness. Further, Ancestry’s illegal actions caused the plaintiffs mental anguish and disturbed their peace of mind. The plaintiffs are deeply uncomfortable that Ancestry is profiting from its use of their names, photographs, and personas in advertisements for a website they do not use, endorse, or approve of. These allegations, and the availability of such an action at common law, are sufficient to establish Article III standing for the plaintiffs’ Section 3344 claim and misappropriation of likeness claim.

To counter, Ancestry relies on Callahan v. Ancestry.com Inc., No. 20-CV-08437-LB, 2021 WL 2433893 (N.D. Cal. June 15, 2021), arguing the mental anguish alleged here is not an injury in fact. Ancestry also argued that the plaintiffs allege a bare statutory violation of Section 3344, and if being “deeply uncomfortable” were enough to confer standing, TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) would have been decided differently. The district court determined that Ancestry misunderstands the Supreme Court’s analysis. The Court did not need to consider mental anguish because the common law analogue expressly required publication to cause injury. This differs from an action for misappropriation of likeness, which comprises a theory of injury grounded in mental anguish from the unlawful act alone. Considering the common law analogue, as TransUnion requires, shows the plaintiffs’ theory of injury has been recognized as “a basis for a lawsuit in American courts.” Accordingly, the plaintiffs met their burden to plausibly allege standing. Thus, Ancestry’s motion to dismiss under Rule 12(b)(1) was denied.

Misappropriation claims—Copyright Act preemption. Ancestry argued that the plaintiffs’ misappropriation claims must be dismissed because they are preempted by Section 301 of the Copyright Act. In sum, the plaintiffs contended that Ancestry used their likeness in three forms of “advertising”:

1. publication of the yearbook information on a database that contains a paywall for certain features;

2. dissemination of emails to potential Ancestry.com subscribers, noting Ancestry Hints® can expand their family tree, and using the names and images of the plaintiffs as examples; and

3. an Ancestry free trial program that allows potential subscribers to access the plaintiffs’ yearbook information for a limited time.

Of these allegations, the district court found that the first and third fall within the scope of copyright preemption. However, the plaintiffs’ second set of allegations differ, and permit a plausible inference that Ancestry used their likenesses to advertise its services. The emails allegedly sent by Ancestry to prospective subscribers mention Ancestry Hints®, a trademarked feature of the Ancestry platform, which can help a user expand their family tree. To entice consumers into paying for subscription, the email includes the names and images of the plaintiffs as potential avenues of growing that tree, and when a consumer clicks on the name or image, they are redirected to the payment portal for Ancestry.com subscription plans. Thus, Ancestry’s alleged use permits a reasonable inference of misappropriation of likeness outside of a copyright holder’s rights, and therefore, is not preempted.

Therefore, the district court concluded that the plaintiffs’ claims grounded in the first or third theories of advertising are preempted by federal copyright law, while the plaintiffs’ claims based on the second theory of advertising are not. Accordingly, Ancestry’s motion to dismiss the plaintiffs’ claims as preempted was granted in part, as to the first and third theories, and denied in part, as to the second theory.

CDA Section 230. Section 230 of the Communications Decency Act (CDA) immunizes providers of interactive computer services against liability arising from content created by third parties. Here, the district court found that the plaintiffs have plausibly alleged facts to support an inference that Ancestry acted as an “information content provider,” and thus Section 230 does not shield it from liability.

The plaintiffs alleged that Ancestry crafted email advertisements that included their likenesses to encourage potential customers to subscribe to Ancestry’s service. The email advertisements were not created by a third-party user of Ancestry.com—Ancestry authored the content, and as such, it is “responsible, in whole or in part, for the creation” of that offending content. Further, the screenshots in the complaint confirm, the emails sent by Ancestry to prospective users include far more than republished images of the plaintiffs; they incorporate those images into an advertisement for the Ancestry Hints® functionality and Ancestry’s subscription service. Thus, Section 230 did not immunize Ancestry against liability for the content of the alleged email advertisements. Accordingly, Ancestry’s motion to dismiss based on Section 230 immunity was denied.

Statutory standing. California Civil Code Section 3344 requires the plaintiffs to establish they were injured as a result of the alleged misappropriation. Ancestry contended that the plaintiffs have failed to allege mental anguish or any other injury sufficient to satisfy statutory standing. The district court determined that the plaintiffs have plausibly alleged such injury based on the court’s analysis of the parties’ arguments on Article III standing. Thus, Ancestry’s motion to dismiss the Section 3344 claim for lack of statutory standing was denied.

UCL claim. Ancestry asserted that the plaintiffs failed to plausibly allege statutory standing. Statutory standing under the UCL differs from Article III standing. Its economic injury requirement is more restrictive than federal injury in fact because it encompasses fewer kinds of injuries. The plaintiffs alleged mental anguish caused by the misappropriation of their likenesses—an injury sufficient to confer Article III standing. However, they offer only conclusory allegations of any other harm. Though the plaintiffs aver Ancestry injured them “by taking their intellectual property without compensation,” they offer no factual support to identify or describe that intellectual property. Moreover, the plaintiffs did not supply any allegations to establish their likenesses have independent economic value on the market. The district court noted that absent a plausible economic injury, the plaintiffs cannot advance their UCL claim. Therefore, Ancestry’s motion to dismiss the UCL claim for lack of statutory standing was granted, with leave to amend.

Remedies. The district court noted that regarding remedies, Ancestry contended that the plaintiffs failed to plausibly allege a threat of future harm sufficient to seek prospective relief. Ancestry argued that since it has made the plaintiffs unsearchable on their yearbook database, there is no risk of future misappropriation of their likenesses. Additionally, Ancestry asserted that the plaintiffs failed to plead a lack of available remedies at law, and under Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), their equitable claims should be dismissed. The district court found that both arguments lacked merit.

As to Ancestry’s first argument, removal of the plaintiffs from the online searchable database is simply unrelated to use of the plaintiffs’ likenesses in email marketing. Ancestry’s voluntary cessation ultimately has no bearing on the conduct the plaintiffs have plausibly alleged is unlawful. Regarding the second argument, the district court noted that Sonner does not compel the result Ancestry suggests. Additionally, a significant number of district courts in the Ninth Circuit have not interpreted Sonner to require dismissal of equitable claims at the pleading stage. Consequently, Ancestry’s motion to dismiss the plaintiffs’ request for prospective relief was denied.

Thus, Ancestry’s Rule 12(b)(1) motion and motion to dismiss the Section 3344 and misappropriation of likeness claims under Rule 12(b)(6) were denied. Further, Ancestry’s motion to dismiss the plaintiffs’ claims as preempted by federal copyright law was granted in part and denied in part. Ancestry’s motion to dismiss the UCL claim for lack of statutory standing was granted, with leave to amend.

The Case is No. 3:25-cv-05974-AMO.

Judge: Martinez-Olguin, A.

Attorneys: Andrew Gerald Gunem (Strauss Borrelli PLLC) for Susan Gehringer. Cristina Aide Henriquez (Quinn Emanuel Urquhart & Sullivan LLP) for Ancestry.com Operations Inc.

Companies: Ancestry.com Operations Inc.

Cases: Copyright TechnologyInternet CaliforniaNews