IP Law Daily, PUBLICITY RIGHTS—N.D. Ill.: Publicity rights action against Ancestry.com over yearbook photos is time-barred, (Sep 22, 2022)

By Anne Gibson, J.D., LL.M.

The claims under the Illinois Right of Publicity Act were not filed within one year of the original publication.

An individual’s claims alleging unauthorized use of his likeness against Ancestry.com were time-barred, the federal district court in Chicago has held. Although the Illinois Right of Privacy Act (“IRPA”) does not include a statute of limitations, prior case law from an Illinois appellate court instructed that it should have the same statute of limitations as the prior common law tort of appropriation of likeness, which was one year. The plaintiff’s yearbook photo was first made available in June 2019, but he did not learn about it immediately and filed his suit in December 2020, more than one year later. Thus, the court found, his claim was barred and Ancestry.com was awarded summary judgment (Bonilla v. Ancestry.Com Operations Inc., September 16, 2022, Kendall, V.).

Ancestry.com maintains family history and genealogical records. Its business model includes amassing databases of personal information and subsequently selling access to that information. This includes data gathered from yearbooks and aggregated into digital records that identify specific individuals. Sergio Bonilla, an Illinois man whose 1995 yearbook photo was used by Ancestry.com, alleges that Ancestry.com used his name, photograph, and likeness to advertise its paid products and services and to solicit customers without his consent. The man brought a putative class action lawsuit against Ancestry.com alleging violation of the IRPA, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), intrusion upon seclusion, and unjust enrichment. On Ancestry.com’s motion to dismiss, the ICFA and intrusion upon seclusion claims were dismissed in December 2021, leaving the IRPA and unjust enrichment claims. Ancestry.com filed a motion for summary judgment, contending, in part, that the claims were barred by the statute of limitations.

Statute of limitations. The IRPA does not itself include a statute of limitations. However, the court had determined in a prior case to follow an Illinois appellate court decision in Blair v. Nevada Landing Partnership, 859 N.E.2d 1188 (Ill. App. Ct. 2006). That case found that the IRPA had supplanted the common law tort of appropriation of likeness, and so the same statute of limitations that had applied to that tort, one year, should apply to the new law. The court cited to its earlier decision for the proposition that “[t]he statute of limitations period for an IRPA claim begins to run . . . ‘when the allegedly infringing publication was first published.’”

In the present case, Ancestry.com had acquired the plaintiff’s yearbook photo and other information and made it available on their website for the first time on June 27, 2019. The plaintiff did not learn about this immediately, but once he did, he filed suit on December 14, 2020. The court found that, because his claim was not filed within one year of the initial publication of his photo, it was barred.

Ongoing violation. The plaintiff made several arguments against this conclusion. He argued that Ancestry.com was engaged in an ongoing violation, which would allow the statute of limitations to restart with each republication, because it was making his photo available every time it appeared in a search, as well as in promotional emails. The court, however, concluded that only the initial upload was done with “conscious intent” by the company and that afterward, “the technology, not the company, does the real work.” The court found that first publication date was the only one that was relevant.

Discovery rule. The plaintiff also argued that the discovery rule, which would delay the start of the statute of limitations until the plaintiff learns of the violation, should apply. The court stated that, under Blair, “the discovery rule is inapplicable . . . unless the publication was hidden, inherently undiscoverable, or inherently unknowable.” The court rejected this argument.

Continuing procurement. The plaintiff also argued that each time Ancestry.com pays for the right to use his image, the statute of limitations should restart. Ancestry.com makes periodic payments to PeopleConnect, a company that licenses the information and images from yearbooks, including the one at issue. The court found that procuring the right to use the plaintiff’s image would not restart the statute of limitations, because it was an expenditure rather than “a profit from the use of someone’s image,” and because the payments did not constitute a “reuse” of the image but rather were “simply a routine part of the company’s business.”

Equitable tolling. Finally, the court found that the plaintiff was not entitled to equitable tolling, which would extend the statute of limitations for fairness reasons. The three situations in which this would apply are: (1) the defendant misled the plaintiff, (2) the plaintiff was prevented from brining his claim “in some extraordinary way,” or (3) the plaintiff first brought his or her claim in the wrong forum. Because none of these occurred in this case, the court declined to “excuse [plaintiff’s] delay in filing.” Thus, due to the IRPA claim having been filed more than one year after the initial publication, the court found that it was barred by the statute of limitations.

Unjust enrichment. Because the plaintiff’s unjust enrichment claim was based on his IRPA claim, it also failed.

Ancestry.com’s motion for summary judgment was granted.

The Case is No. 1:20-cv-07390.

Attorneys: Benjamin Ross Osborn (Law Office of Benjamin R. Osborn) for Sergio Bonilla. Daniel R. Lombard (Quinn Emanuel Urquhart & Sullivan, LLP) for Ancestry.com Operations, Inc. and Ancestry.com, Inc.

Companies: Ancestry.com Operations, Inc.; Ancestry.com, Inc.

Cases: PublicityRights TechnologyInternet IllinoisNews