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Intellectual Property Rights of Mug Shots: Does Trump Own His Mug Shot?

After years of uncertainty around the repercussions of Donald Trump’s illicit conduct, he was recently arrested in Georgia and the Fulton County Jail released his mug shot to the public. In response, Trump’s team began using this as fuel for his “never surrender” election campaign and in doing so, also creating a lucrative business. You can now find merchandise with Trump’s mug shot accompanied by exclamations like “free Trump!” or “never surrender”. Regardless of whether buyers are genuinely interested in supporting Trump or purchasing the items ironically, news outlets have reported that as at the time of writing of this insight, this merchandise has already raised more than $7 million for his re-election campaign.

Intellectual Property Rights of Mug Shots: Does Trump Own His Mug Shot? Featured image

What is a Mug Shot and Who Owns it?

A mug shot is a photograph taken as a form of identification by a law enforcement agency when an individual is arrested. The law enforcement agency does not need to obtain permission from the individual arrested nor can the individual decline to take the mug shot because by virtue of an arrest, certain rights of the individual may be infringed upon. Given that mug shots serve as a means of identification, individuals facing arrest, including those involved in commercial litigation, are obligated to have their photographs taken at the request of law enforcement agencies.

Intellectual Property laws aim to protect and enforce the rights of creators and owners of inventions, writing, music, designs and other works, known as “intellectual property.” There are several areas of intellectual property including copyright, trademarks, patents, and trade secrets but fundamentally, the concept centers around the idea that the entity that created something has ownership over it.[1] An original work is automatically protected by copyright when it is “created and fixed,” even if it is not accompanied by a copyright notice or a copyright symbol.[2] Generally, a photographer owns the copyright to photographs they take. The individual in the photograph does not have any ownership over it.

Works under public domain are not protected by intellectual property laws. Works arrive in the public domain if the copyright has expired, the copyright owner failed to follow copyright renewal rules, the copyright owner deliberately placed the work in the public domain (dedication), or copyright law does not protect this type of work. This means that online publication of original work does not automatically mean the work has arrived in the public domain and intellectual property protections may still apply. Do law enforcement agencies have a copyright claim over mug shots?

In the United States, any work created by a federal government employee or officer is in the public domain provided that the work was created in that person’s official capacity.[3] Works created by state and local government employees do not strictly fall into this exception however, mug shots taken by state or local officers appear to have state-specific rules. In Georgia, where Trump’s mug shot was captured, the Official Code of Georgia (OCGA) does not explicitly dedicate mug shots to the public domain. The OCGA permits the publication of an individual’s name, arrest date and birth date on a publicly available commercial website and provides eight circumstances under which the commercial website must remove an individual’s mug shot. Officers from the Douglas County Sherrif’s Office state that mug shots are a part of public domain while the Attorney General’s Consumer Protection Division of Georgia and the Fulton County Jail remain silent on the matter. According to American case law, the law is always in the public domain, whether it consists of government statutes, ordinances, regulations, or judicial decisions however, there is no explicit mention of whether public government records, like mug shots, are also a part of the public domain.[4] Additionally, the federal courts disagree on whether mug shots must be disclosed the Freedom of Information Act.[5]

Can Trump Legally Commercialize his Mug Shot? 

If disputed, there are legal bases on which Trump’s team’s may justify the commercialization of his mug shot. If the mug shot is a part of the public domain, anyone has permission to use it. If the Fulton County Jail has copyright over the image and claims infringement, Trump’s team may defend their use of the image by claiming fair use. Fair use is determined on a case-by-case basis and judges may consider the purpose and character of use, the nature of the copyrighted work, the amount and substantiality of the portion taken, the effect of the use upon the potential market and sometimes, offensiveness.[6]

Does the law enforcement agency have any rights to the proceeds of Trump’s mug shot merch?

Despite being the producers of Trump’s mug shot, it is unlikely that law enforcement agencies would have any rights to the profits from “mug shot merch”. Celebrities have been legally pursued for posting and making profits off photographs taken by the paparazzi however, many of these cases end in settlement and precedent on this issue has not yet been established. Additionally, given the specific purpose law enforcement agencies have when capturing mug shots, it is likely that their role prohibits them from earning revenue from the circumstances.

Will Trump’s mug shot merch encourage further restrictions around the publication of mug shots?

In recent years, most states have adopted the view that criminals can monetize their stories so long as victims are compensated with the revenue because a ban on such commercialization would be in violation of the First Amendment. This precedent, along with the OCGA rules on commercial websites indicate that the government does not plan to restrict commercialization of criminal or criminal-related activity.

The Big Picture

Trump’s “mug shot merch” contributes to the broader conversation regarding the development of proactive rules about IP ownership, what should be commercialized and whether there should be restrictions on situations where individuals can profit.

If you have any questions or would like any additional information regarding any of the above, we would love to hear from you. Please feel free to contact us at 1-800-604-1312 or via https://segev.ca/contact-us/.

Disclaimer

***The above blog post is provided for informational purposes only and has not been tailored to your specific circumstances. This blog post does not constitute legal advice or other professional advice and may not be relied upon as such.**

Links

[1] This article focuses specifically on copyright.

[2] https://fairuse.stanford.edu/overview/public-domain/welcome/

[3] https://fairuse.stanford.edu/overview/public-domain/welcome/

[4] Veeck v. Southern Building Code Congress International, Inc. 293 F.3d 791 (5th Cir. 2002).)

[5] https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1037&context=nulr#:~:text=Federal%20appellate%20courts%20have%20disagreed,of%20personal%20privacy”%20if%20released.

[6] https://fairuse.stanford.edu/overview/fair-use/four-factors/