Appeals Anti-SLAPP Ruling in Nevada Right-to-Publicity Suit

Last Thursday, the online genealogy and historical records company filed a notice of appeal, challenging part of the District of Nevada court’s mid-September ruling. In particular, Operations Inc. and its affiliates sought review of the court’s rejection of their anti-SLAPP motion to strike, a defense which defendants can lodge when the plaintiff’s claim “‘is based upon a good faith communication in furtherance of . . . the right to free speech in direct connection with an issue of public concern.’”

The lawsuit involves Ancestry’s purported use of the plaintiffs’ names, images, and likenesses (NILs) to market paid subscriptions to the company’s database of school yearbooks. The database is reportedly constructed from personal information extracted from yearbooks, then compiled into digital records that correspond to and identify individuals.

The plaintiffs brought claims under the Nevada Right of Publicity Statute, a law that prohibits the unauthorized commercial use of NILs, except in select instances. One exception permits the use of an individual’s NIL when in connection with “public affairs.” The court found that the plaintiffs had standing to raise their right of publicity claim, in part because “the challenged advertising communications do not implicate matters of public concern.”

The court reasoned that Ancestry failed to demonstrate that its use of the plaintiffs’ NILs was in the realm of public affairs rather than for commercial gain. In support of its conclusion, the court cited a sister district’s opinion explaining that “even if Facebook users’ ‘likes’ are in the public interest among an audience of their friends, Facebook’s publication thereof was for commercial purposes, not the public interest.”

With regard to the Nevada anti-SLAPP motion, the court engaged in a two-step analysis. The opinion explained that courts must first determine if the non-moving party’s claims for relief are based on a “communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern.”

For the same reason that the public affairs exception did not apply to the plaintiffs’ publicity claim, the court held that the challenged advertising communications did not implicate matters of public concern. Thus, the defendants failed to carry their burden as to the first of the anti-SLAPP law’s conjunctive requirements. 

The plaintiffs are represented by Knepper & Clark LLC and Morgan & Morgan Complex Litigation Group. Ancestry is represented by Cohen-Johnson LLP and Quinn Emanuel Urquhart & Sullivan, LLP.

Morgan & Morgan and Quinn Emanuel are the same counsel that represents the plaintiffs and defendants, respectively, in a parallel Northern District of California proceeding. After the court dismissed the complaint for want of constitutional standing and the plaintiffs appealed, last week the plaintiffs asked the court to reconsider the matter based on a recent Supreme Court ruling, but also pointed to the instant ruling for further support.