Wilson v. Ancestry.com LLC

             UNITED STATES DISTRICT COURT                            
               SOUTHERN DISTRICT OF OHIO                             
                   EASTERN DIVISION                                  

JOHN WILSON, on behalf of himself                                         
and all others similarly situated,                                        

     Plaintiff,                                                      
                              Case No. 2:22-cv-861                   
v.                            JUDGE EDMUND A. SARGUS, JR.            
                              Magistrate Judge Kimberly A. Jolson    

ANCESTRY.COM LLC, et al.,                                                 

     Defendants.                                                     

                  OPINION AND ORDER                                  
This matter is before the Court on Plaintiff John Wilson’s Motion for Class Certification 
(ECF No. 70), Defendants Ancestry.com Operations Inc., Ancestry.com Inc., and Ancestry.com 
LLC’s (collectively, “Ancestry”) Motion to Exclude Plaintiff’s Expert (ECF Nos. 78, 79), and 
Ancestry’s Motion for Summary Judgment (MSJ, ECF No. 80).  For the reasons below, the Court 
GRANTS Ancestry’s Motion for Summary Judgment, DENIES as moot Wilson’s Motion for 
Class Certification, and DENIES as moot Ancestry’s Motion to Exclude Plaintiff’s Expert.  
                     BACKGROUND                                      
I.   Factual Background                                                   
This case concerns how Ancestry—a subscription-based genealogical company—uses a 
person’s yearbook records to market its services.                         
A.   Ancestry’s Marketing Techniques                                 
As the Court articulated in its Motion to Dismiss, Wilson alleged that Ancestry used three 
advertising techniques, without his consent, to encourage viewers to subscribe to Ancestry’s online 
website database of personal records:                                     
First, via Ancestry’s publicly accessible landing page, any visitor may search for 
any person by name and location. (Compl. ¶ 6, ECF No. 1.) Upon returning a search 
for Wilson or any proposed class member, Ancestry retrieves a list of corresponding 
yearbook photographs accompanied by promotional text urging the visitor to “Sign 
Up Now” for a subscription. (Id.) The promotional text further encourages purchase 
of a subscription by promising that “There’s more to see” about the searched 
individual,  including  higher-resolution  photographs  and  additional  personal 
information, such as the individual’s city of residence, estimated age, and high 
school graduation year. (Id.)                                        

As for the second advertising technique, Ancestry sends promotional emails and 
onsite messages to users who have not yet subscribed and who may be related to 
Wilson or a proposed class member. (Id. at ¶¶ 7, 38.) Wilson alleges that these 
emails and messages use his and the proposed class members’ names and identities, 
referencing one promotional email with the subject line “What should you explore 
next for [proposed class member]?” (Id.) The body of the email provides a link, and 
if the recipient follows the link, he or she is taken to a webpage asking him or her 
to subscribe to Ancestry.com. (Id.)                                  

In the third advertising technique, Ancestry allows users to enroll in a two-week 
free trial membership during which users have full access to Ancestry’s services. 
(Id. at ¶ 8.) These users may search for, view, print, and share Wilson and other 
proposed class members’ personal information. (Id.) As alleged, Ancestry’s “sole 
purpose” in granting free-trial users access to Wilson and the proposed class 
members’ personal information is to solicit the purchase of paid memberships. (Id.) 

(Order, ECF No. 41, at PageID # 405.)  The Court will refer to these techniques as “Pop-Up’s,” 
“Hint Emails,” and the “Free Trial” technique, respectively.  Wilson’s Complaint alleges that 
Ancestry used these three techniques in violation of the Ohio Right to Publicity Statute (“ORPS”) 
and common law invasion of privacy.                                       
Ancestry submits the sworn declaration of its Vice President of Global Content, Todd 
Godfrey, to explain these three advertising techniques in more detail.  (Godfrey Decl., ECF No. 
80-2.)  Godfrey explains that Ancestry permits website visitors to search for a person’s yearbook 
records.  (Id. ¶ 3.)  Ancestry does not keep search results in a static form, instead generating results 
lists in response to a visitor’s search.  (Id. ¶¶ 4–8.)  Once the list is created, a visitor must hover 
their mouse over the “view records” link on a search result to generate a Pop-Up.  (Id. ¶¶ 10–11.)  
Without hovering over the “view records” link, the Pop-Up does not exist.  (Id.)   
Godfrey also explains how Hint Emails work.  A Hint Email is generated only when a 
website visitor signs up for an Ancestry account—whether a free trial or paid subscription—and 

adds a person to his or her family tree.  (Id. ¶ 12.)                     
B.   Wilson’s Records                                                
Along with explaining how these Ancestry marketing techniques work, Godfrey reviewed 
how and whether Wilson’s records were used in conjunction with these three techniques. 
Godfrey determined that Ancestry’s use of Wilson’s likeness differs from the actions 
alleged in Wilson’s Complaint.  Godfrey declares that these three commercial uses never occurred.  
(Godfrey Decl., ECF No. 80-2.)  He declares that “[n]one of [Wilson’s] five yearbook records . . . 
were ever interacted with in a search results list (such that a ‘pop up’ bubble or prompt to sign up 
could not have been generated) or accessed in part or in full by any free trial or other non-paying 
user other than plaintiff’s own counsel.”  (Id. ¶ 16.)  Thus, Godfrey implicitly concedes that 

Ancestry displayed Wilson’s yearbook records in a search results list, but declares that no Pop-Up 
used Wilson’s image or likeness.  (See id. ¶¶ 15–16.)  He further declares that Wilson’s yearbook 
records have never been the subject of a Hint Email.  (Id. ¶ 15.)         
II.  Procedural Background                                                
The Court denied Ancestry’s Motion to Dismiss.  (Order, ECF No. 41.)  The Court ruled 
that Wilson had standing to pursue his claims, specifically rejecting Ancestry’s argument that 
Wilson had not suffered an “injury in fact.”  (Id. at PageID # 414–15.)  The Court held that 
Wilson’s  alleged  injury  from  Ancestry’s  misappropriation  of  his  persona  to  promote  paid 
subscriptions was sufficient to confer Article III standing.  (Id. at PageID #  415.)  The Court found 
that Wilson did suffer an injury in fact because, taking Wilson’s allegations as true, Ancestry used 
his persona for a commercial purpose in violation of Ohio’s right of publicity statute and common 
law claim for misappropriation of name and likeness.  (Id. at PageID # 415–16.) 
The Court also rejected Ancestry’s argument that Wilson did not state plausible claims for 

relief.  The Court found that Wilson plausibly alleged that “Ancestry’s advertisements directly use 
Wilson’s persona when soliciting paid subscriptions.”  (Id. at PageID # 418.)  The Court based its 
ruling, in part, on the allegation 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.”  (Id. (citing Compl., ECF No. 
1, ¶¶ 34–35).)  Further, the Court held that “Ancestry’s practice of using Wilson’s persona to solicit 
paid subscriptions plausibly demonstrates that Wilson’s persona has commercial value.”  (Id. at 
PageID # 419.)                                                            
The Court reached its decision by accepting as true Wilson’s allegations and arguments 
that “Ancestry’s advertisements directly associate [his] name, photograph, and persona with the 

purchase of a website subscription.”  (Pl. Resp. to Mot. to Dismiss, ECF No. 29, at PageID # 209–
10; see also Compl., ECF No. 1.)                                          
Three motions are now pending before the Court.  Wilson moved for class certification.  
(ECF No. 70.)  At the same time Ancestry opposed class certification (ECF No. 81), it moved to 
exclude Wilson’s expert testimony in support of class certification (ECF No. 78) and moved for 
summary judgment (Def. MSJ, ECF No. 80).  Wilson responded in opposition to Ancestry’s 
summary judgment motion (ECF No. 90), responded in opposition to Ancestry’s motion to exclude 
expert testimony (ECF No. 93), and replied in support of his motion for class certification (ECF 
No. 97).  Ancestry replied in support of its summary judgment and expert exclusion motions.  (ECF 
Nos. 102, 103.)                                                           
All three pending motions are ripe for the Court’s review.  Herein, the Court focuses its 
analysis on Ancestry’s summary judgment motion regarding Wilson’s Article III standing. 

                  STANDARD OF REVIEW                                 
I.   Rule 56 Summary Judgment                                             
Summary judgment is appropriate when “there is no genuine dispute as to any material fact 
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has 
the burden of establishing there are no genuine issues of material fact, which may be achieved by 
demonstrating the nonmoving party lacks evidence to support an essential element of its claim.  
Celotex Corp. v. Catrett, 

477 U.S. 317

, 322–23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling 
Co., 

12 F.3d 1382

, 1388–89 (6th Cir. 1993). The burden then shifts to the nonmoving party to “set 
forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 250

 (1986) (quoting Fed. R. Civ. P. 56). When evaluating a motion for summary 

judgment, the evidence must be viewed in the light most favorable to the non-moving party.  
Adickes v. S.H. Kress & Co., 

398 U.S. 144, 157

 (1970).                    
A genuine issue exists if the nonmoving party can present “significant probative evidence” 
to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. 
Philip Morris Cos., 

8 F.3d 335

, 339–40 (6th Cir. 1993). In other words, “the evidence is such that 
a reasonable jury could return a verdict for the non-moving party.” Anderson, 

477 U.S. at 248

; see 
also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 587

 (1986) (concluding that 
summary judgment is appropriate when the evidence could not lead the trier of fact to find for the 
nonmoving party).                                                         
II.  Article III Standing                                                 
For a federal court to have subject matter jurisdiction over a case, the plaintiff must have 
standing to assert his claims.  A plaintiff will lack standing unless she: “(1) suffered an injury in 
fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to 

be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 

578 U.S. 330, 338

 (2016).  
“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally 
protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or 
hypothetical.’”  

Id.

 at 339 (quoting Lujan v. Defs. of Wildlife, 

504 U.S. 555, 560

 (1992)).  “A 
‘concrete’ injury is one that ‘actually exist[s].’”  Gerber v. Herskovitz, 

14 F.4th 500, 506

 (6th Cir. 
2021) (quoting Spokeo, 

578 U.S. at 340

).  “Central to assessing concreteness is whether the 
asserted harm has a ‘close relationship’ to a harm traditionally recognized as providing a basis for 
a lawsuit in American courts.”  TransUnion LLC v. Ramirez, 

594 U.S. 413, 417

 (2021) (citing 
Spokeo, 578 U.S. at 340–341).                                             
                       ANALYSIS                                      

Ancestry’s motion for summary judgment mirrors the arguments made in its motion to 
dismiss—all of which the Court squarely rejected.  (Compare Order, ECF No. 41, with Def. MSJ, 
ECF No. 80-1.)  That said, Ancestry renews these arguments considering uncontroverted evidence 
previously unknown to the Court.  Now, discovery has shown that Wilson’s yearbook records had 
never been included in a Hint Email; had never been included in Pop-Ups; and had never been 
accessed in a Free Trial.  In short, Wilson’s records had never been used in the manner alleged to 
violate his statutory and common law rights.                              
Whether this Court considers these shortcomings as a lack of concrete injury for Article III 
standing or a failure to meet the elements of Wilson’s claims, the result is the same: Ancestry is 
entitled to summary judgment.                                             
I.   Article III Standing and Elements of Wilson’s Claims                 

As the Court previously explained, to meet the “injury” requirement of Article III standing, 
Wilson’s injury must have been “concrete”—i.e., “real, and not abstract.”  TransUnion, 

594 U.S. at 424

 (citing Spokeo, 

578 U.S. at 340

).  To determine whether an injury is concrete, “courts should 
assess whether the alleged injury to the plaintiff has a ‘close relationship’ to a harm ‘traditionally’ 
recognized as providing a basis for a lawsuit in American courts.”  

Id.

 (quoting Spokeo, 

578 U.S. at 341

).  This inquiry “asks whether plaintiffs have identified a close historical or common-law 
analogue for their asserted injury.”  

Id.

  The Court found Wilson adequately established an injury 
in fact for his Ohio right of publicity claim under Ohio Rev. Code § 2741 and his analogous 
common law invasion of privacy claim.  (Order, ECF No. 41, at PageID # 415); see James v. Bob 
Ross Buick, Inc., 

855 N.E.2d 119

, 122 n.2 (Ohio Ct. App. May 19, 2006) (noting also that Ohio’s 

codified right of publicity does not supplant common law invasion of privacy).  
The Court relied on Wilson’s allegation that Ancestry used his persona for a commercial 
purpose in violation of Ohio’s right of publicity.  The Court summarized Wilson’s claims as 
follows:                                                                  
Wilson first claims a violation of his right of publicity under R.C. § 2741. Under 
Ohio’s  right  of  publicity  statute,  “a  person  shall  not  use  any  aspect  of  an 
individual’s persona for a commercial purpose” unless “[t]he person first obtains 
written consent[.]” Ohio Rev. Code § 2741.02(A)–(B). “[P]ersona” means “an 
individual’s name, voice, signature, photograph, image, likeness, or distinctive 
appearance, if any of these aspects have commercial value.” Ohio Rev. Code § 
2741.01(A). As for Wilson’s analogous common law claim, a defendant is subject 
to liability when he appropriates to his own use or benefit the name or likeness of 
another,  and  the  name  or  likeness  has  commercial  or  other  value.  Roe  v. 
Amazon.com, 

714 F. App’x 565, 568

 (6th Cir. 2017).                   
Wilson v. Ancestry.com LLC, 

653 F. Supp. 3d 441

, 454 (S.D. Ohio 2023), reconsideration denied, 
No. 2:22-CV-861, 

2024 WL 3157764

 (S.D. Ohio June 25, 2024).  Applying the plaintiff-favorable 
standard used to assess a motion to dismiss, the Court previously rejected Ancestry’s argument 
that Wilson lacks standing to bring his claims, finding that Wilson alleged he suffered a concrete 
injury in fact when Ancestry used his persona for a commercial purpose.  (Order on MTD, ECF 
No. 41, at PageID # 415–16.)                                              
Now,  discovery  revealed  that  the  facts  do  not  support  Wilson’s  allegations.    The 
commercial use—that is, the underlying alleged conduct—never occurred.  While visitors of 
Ancestry.com had potentially searched for Wilson’s name and saw the resulting Search Results 

List displaying Wilson’s name and records, Wilson presents no evidence to show that any website 
visitor hovered over the “view records” button that triggers the Pop-Up advertisement.  Without 
that simple action—toggling over the “view records” action—the user is never presented with the 
Pop-Up advertisement Wilson complains of.  And without the Pop-Up advertisement, a website 
visitor is not prompted to pay for an Ancestry subscription.              
Given these facts, the Court must consider two questions.  First, whether the Pop-Up 
advertisements “existed” on the Ancestry website, despite no user hovering over the “view 
records” link.  If the advertisements never existed, the Pop-Up cannot be the basis for Wilson’s 
claims.                                                                   

Second, the Court must consider whether the Search Results Page itself, rather than the 
Pop-Up, constituted an actionable commercial use.  If not, and the Pop-Up using Wilson’s persona 
never existed, summary judgment must be granted in favor of Ancestry.     
A.   Whether the Pop-Ups “Existed”                                   
If the action Wilson complains of never occurred in the first instance, it cannot form the 
basis of his claims against Ancestry.                                     
Wilson contends that Ancestry is attempting to impose a viewership requirement on 

Wilson’s claims, which normally only considers Ancestry’s actions in using plaintiff’s identity, 
not on the actions of third parties outside of Ancestry’s control (i.e., viewing the advertisement).  
(Pl. Resp., ECF No. 90, at PageID # 2050–56 (arguing that the Ohio Right of Publicity Statute 
does not impose a third-party viewership requirement).)  This case presents a slightly different 
issue: as Ancestry argues, there is a difference between an advertisement that was never viewed 
and one that never existed to begin with.  (Def. Reply, ECF No. 102, at PageID # 2486 (“[T]he 
deficiency in plaintiff’s claims here derives from whether his records were ever used the way 
plaintiff challenges, not whether such ‘advertisements’ were viewed.”).)  The Court is persuaded 
by Ancestry’s framing.                                                    
Godfrey declares that the Pop-Ups do not exist in static form on the website, and that they 

are only generated in response to a visitor’s interaction.  (Godfrey Decl., ECF No. 80-2, ¶¶ 10–
11.)  Ancestry argues that because no user hovered over the “view records” button, the Pop-Up 
never existed, and thus the commercial use or misappropriation never occurred.  See Ridgeway v. 
Spokeo, Inc., 

697 F. Supp. 3d 979

, 986 (C.D. Cal. 2023) (“[The teaser profile] does not merely sit 
on the internet as a webpage waiting to be accessed, but requires someone specifically interested 
in Ridgeway’s information to seek it and Spokeo to respond to that request by generating and 
presenting the teaser report. This is what differentiates it from other information ‘published’ on 
the internet.”).                                                          
Wilson disagrees that the Pop-Up advertisement never “existed” until a website visitor 
hovered over the “view records” button on the Search Results List.  In support of his argument, 
Wilson cites Nolen v. PeopleConnect, Inc.  No. 20-CV-09203-EMC, 

2023 WL 9423286

 (N.D. 
Cal. Dec. 14, 2023).  There, the website “classmates.com” permitted visitors to browse yearbooks.  
The plaintiff alleged similar claims as Wilson does—that the defendant used her name and 

likeness, without her consent, to advertise its paid subscription service.  Id. at *1.  As Ancestry 
does here, PeopleConnect argued that the advertisements it creates do not exist until a website 
visitor  takes  certain  actions.    Id.  at  *9.    The  Northern  District  of  California  rejected 
PeopleConnect’s argument, reasoning that “there was a preexisting subscription ad; it simply was 
not visually displayed until later.”  Id. at *9–10.                       
Nolen is distinguishable.  As discussed infra Part I(B), the plaintiff in Nolen pled her claims 
far more broadly than Wilson did here.  Wilson’s allegations have been specific throughout this 
litigation: Ancestry uses three advertising techniques to entice potential subscribers, and it used 
those techniques alongside Wilson’s records.  Further, Nolen relies on the potential generation of 
an advertisement, finding that because an advertisement could be generated, the plaintiff advanced 

a plausible claim.  Id. at *9 (“PeopleConnect’s system was set up to generate a subscription ad 
after a search . . . .”) (emphasis added).  The potential for commercial use does not satisfy the 
requirements of claims for violating ORPS or common law misappropriation.  ORPS and common 
law misappropriation require actual use, not potential use.  See Wilson, 653 F. Supp. 3d at 454 
(describing the requirements of ORPS and common law misappropriation) (citing Ohio Rev. Code 
§ 2741.02 and Roe, 

714 F. App’x at 568

).                                  
The Court finds that the Pop-Up never existed.  Godfrey’s undisputed testimony confirms 
that Ancestry’s Pop-Up advertisements do not exist in static form, and that no website visitor 
“hovered” over the “view records” option on Wilson’s records.  Because no visitor took such 
action, the Pop-Up advertisement alleged in Wilson’s complaint was never created. 
Contrary to Wilson’s argument, this case also differs from Roe v. Amazon.  In Roe, the 
defendant used the plaintiffs’ photograph on the cover of his book without obtaining consent from 

the plaintiffs.  Roe v. Amazon.com, 

170 F. Supp. 3d 1028, 1030

 (S.D. Ohio 2016) (Rose, J.), aff’d, 

714 F. App’x 565

 (6th Cir. 2017).  This Court found that using the plaintiffs’ photograph 
constituted an actionable commercial use, regardless of whether a third party had viewed the 
advertisement.  See generally 

id.

  As Ancestry aptly notes, Roe concerned a photograph on the 
cover of a book that indisputably existed.  Not so here.  As the Court already addressed, it is the 
existence of the commercial use or advertisement at issue, and not whether a third party viewed 
said advertisement, that informs the analysis here.                       
The Court agrees that, absent specific visitor interaction, the Pop-Ups on Ancestry’s 
website do not exist.  And because that interaction did not occur here, the Pop-Up using Wilson’s 
likeness never existed.                                                   

Wilson cannot survive summary judgment by pointing to the exhibits in his complaint.  
While the exhibits show screenshots of the Search Result List and how a Pop-Up advertisement 
would use Wilson’s likeness for a commercial purpose, these advertisements were created in 
response to his attorney’s actions, not a potential subscriber’s.  (See Compl., ECF No. 1, Exs. 1–
3.)  As Ancestry notes, one’s own attorneys cannot create the harm forming the basis of his 
complaint.  See, e.g., Clapper v. Amnesty Int’l USA, 

568 U.S. 398, 416

 (2013) (“[Plaintiffs] cannot 
manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical 
future harm that is not certainly impending.”); Fry v. Ancestry.com Operations Inc., No. 3:22-CV-
140 JD, 

2023 WL 2631387

, at *5 (N.D. Ind. Mar. 24, 2023) (“It will not suffice if the advertising 
occurred only to Mr. Fry’s attorneys for the purpose of litigation . . . .”). 
B.   Whether the Search Results List Itself Constitutes “Commercial Use”  
Wilson offers an alternative argument: that the Search Results List itself functions as an 

advertisement and is a commercial use of his likeness.  (Resp., ECF No. 90, at PageID # 2057.)  
The Court disagrees.                                                      
Wilson argues that the search results, which show his name, school location, photographs, 
and blurred information regarding his yearbook date and school name “communicates that the 
visitor must purchase a subscription to view the blurred information about [him].”  (Id.)  And while 
recognizing that possession of his yearbook records alone would not create liability, Wilson 
contends that “Ancestry does not merely possess [his] photograph, but rather provides searchable 
access to [his] name and photograph to entice paying subscribers.”  (Pl. Resp., ECF No. 90, at 
PageID # 2055 (citing and distinguishing Fry v. Ancestry.com Operations Inc., 

2023 WL 2631387

, 
at *6 (N.D. Ind. Mar. 24, 2023) and Verde v. Confi-Chek, Inc., 

2021 WL 4264674

, at *5 (N.D. Ill. 

Sept. 20, 2021)).)  Wilson argues that the court in Sessa v. Ancestry.com—a case with nearly 
identical claims as alleged here—recognized that the Search Results List is an advertisement 
constituting commercial use.  (Id. at PageID # 2058 (citing Sessa v. Ancestry.com, 

561 F. Supp. 3d 1008

, 1017 (D. Nev. 2021)).)                                           
Not so.  As Ancestry correctly rebuts, Wilson’s pieced-together quotes from Sessa do not 
support his argument.  There, the court recognized that paid subscriptions were advertised once a 
website visitor, when viewing the search results page, clicks through information or hovers over 
the “view record” link.  Sessa, 561 F. Supp. 3d at 1017.  The court did not regard the Search Results 
List itself as a commercial advertisement.  Indeed, the court in Sessa contemplated specific actions 
must be taken by the website visitor before subscription advertisements are created in the first 
place.                                                                    
Showing Wilson’s photo and information on the Search Results List, standing alone, is not 
a use of his likeness for a commercial purpose.  Although the Search Results List shows Wilson’s 

yearbook  photos,  Wilson  may  only  advance  a  claim  where  his  likeness  was  used  or 
misappropriated for a commercial purpose.  The commercial purpose, as alleged in Wilson’s 
complaint and demonstrated on the website, is enticing website visitors to pay for a subscription 
for Ancestry’s services.  The Search Results List does not prompt any visitor to subscribe to 
Ancestry—the Pop-Ups do.  (Compare Godfrey Decl., ECF No. 80-1, ¶¶ 5–6, with ¶¶ 10–11.) 
Wilson  has  never  argued  that  the  Search  Results  List—and  not  the  Pop-Up 
advertisements—used his likeness for a commercial purpose.  The Court has relied on those 
narrower allegations in its prior orders, and now there is undisputed evidence that the Pop-Up 
never existed.  Accordingly, the Court does not find that the Search Results List alone, which does 
not display a link or suggestion that visitors should subscribe to Ancestry, constitutes an actionable 

commercial use or misappropriation of Wilson’s likeness.                  
Finally, Wilson’s argument that his harm—the viewing of his persona by a member of the 
public—is imminent is not well taken.  Wilson contends that website visitors will observe his 
personal records “because Ancestry’s advertisements using his persona is openly displayed on the 
internet.”  (Pl. Resp., ECF No. 90, at PageID # 2056.)  As Ancestry argues, Wilson presents no 
evidence that the Pop-Ups or other advertising methods will imminently use Wilson’s records.  
Therefore, Wilson’s argument is speculative.                              
II.  Ancestry is Entitled to Summary Judgment                             
In light of the above, Ancestry is entitled to summary judgment.  The undisputed facts 
before the Court establish that the Pop-Up with Wilson’s likeness never existed, so the underlying 
alleged commercial use and misappropriation never occurred.  The Search Results List itself is not 

an actionable commercial use or misappropriation of Wilson’s likeness, and thus does not provide 
Wilson with an avenue for relief.  As Ancestry argues throughout its briefing, 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.  See Huff v. TeleCheck Servs., Inc., 

923 F.3d 458, 462

 (6th Cir. 2019) (recognizing that 
there can be overlap, but “[t]here is a difference between failing to establish the elements of a 
cause of action and failing to show an Article III injury”).              
Here, both are bars to Wilson’s claim.  Wilson suffered no Article III injury because his 
persona was not used to promote paid subscriptions.  Similarly, Wilson has failed to establish 
elements of his claims because his persona was not misappropriated or used for a commercial 

purpose.                                                                  
Whether this Court considers the lack of commercial use a failure to demonstrate concrete 
injury for Article III standing, or as failure to provide evidence for an element of Wilson’s claims, 
the result is the same: Ancestry is entitled to summary judgment.  Because the Court finds that 
Wilson lacks standing and does not establish elements of his claims, the Court need not address 
Ancestry’s other arguments for summary judgment.                          
                      CONCLUSION                                     
For the reason above, the Court GRANTS Ancestry’s Motion for Summary Judgment 
(ECF No. 80), DENIES as moot Wilson’s Motion for Class Certification (ECF No. 70), and 
DENIES as moot Ancestry’s Motion to Exclude Plaintiff’s Expert (ECF Nos. 78, 79).   
The Clerk is DIRECTED to ENTER JUDGMENT and TERMINATE this case.     
IT IS SO ORDERED.                                                    
8/27/2024                        s/Edmund A. Sargus, Jr.                  
DATE                             EDMUND A. SARGUS, JR.                    
                            UNITED STATES DISTRICT JUDGE