The Mugshot Heard ‘round the World

It was no surprise that the mugshot was immediately copied onto tees, hats, coffee mugs, etc. and sold to Americans who see either a martyr or a traitor in the same image. It was also no surprise that Team Trump produced merch of its own to sell for campaign (a.k.a. criminal defense) fundraising purposes. But these and other uses of the photograph have fostered some legal discussions on chat boards and elsewhere as to who, if anyone, has the right to control the exploitation of the mugshot. And so, I offer my own takes for what they’re worth.

Who Owns the Copyrights in the Image?

This is actually two questions:  1) is the Trump mugshot copyrightable at all? and 2) if so, who would be the owner of the copyright? Opinions will vary, but in my view, there are several factors that militate against enforceable copyright in this photograph, which is tantamount to having no copyright at all. If any party could own the copyright, it would logically be the State of Georgia or Fulton County, but aside from the fact that neither entity is likely to file a registration application for the photo with the Copyright Office, there is arguably no basis for finding sufficient originality in the image.

The mugshot photo station at the jailhouse is presumably as static as a surveillance camera—arranged to capture the same, fact-intensive photo for a highly utilitarian, informative purpose. No human (e.g., officer or clerk) can reasonably claim to have made any creative choices to produce original expression in the Trump mugshot, and this militates against copyright rights, which would then automatically transfer to the state or county employer. If there is any expression in the image at all, it is arguably Trump’s “creative” choice to make the angry face. But although I have explored the question of co-authorship by subjects in photographs, this is 1) a thought experiment outside the bounds of case law; and 2) a theory that would likely find less foundation in an image that is more factual than expressive in nature.

For these reasons alone, I believe the image would not be copyrightable, even if the state entity were to try to register the photograph with the Copyright Office. But no matter what, there is no legal authority under which Trump could own the copyright.

Can the Trump Campaign Control the Merch?

On August 29, Trump campaign adviser Chris LaCivita posted on X, “If you are a campaign, PAC, scammer and you try raising money off the mugshot of @realDonaldTrump and you have not received prior permission…WE ARE COMING AFTER YOU…you WILL NOT SCAM DONORS.”

Notwithstanding the tongue-biting irony of Team Trump using the word scam, LaCivita’s message could be read as a valid warning to any parties that might pretend to be the Trump campaign, but that would be an odd statement in regard to the mugshot because this type of fraud has nothing to do with use of the photograph per se. If, instead, LaCivita means to imply that the Trump campaign has an exclusive right to sell “official” mugshot merchandise for commercial purposes—or to prevent use of the image to raise funds in opposition to Trump—then he’s dead wrong on the law, as that crowd so often is.

Trademark Law Does Nothing for Trump

Although it is permissible to register trademarks in certain words or images used in political campaigns (e.g., slogans or logos), there are both administrative and doctrinal reasons why the Trump campaign could not claim the mugshot as a service mark. As a practical matter, the trademark claimant must use the relevant mark in trade when applying for protection and then go through a rather lengthy process to affirm the mark remains in use—and use in a specific class (or classes) of goods and/or services.

But in this case, the instant the mugshot was shared with the world, it conveyed irreconcilably divergent meanings to the public. So, under trademark practice, could Trump assert the exclusive right to use the “mark” in a class called Multiply Indicted, Seditious Former Presidents? Probably not since no such class exists. But that’s generally what the image conveys to millions of Americans, and the purpose of trademark is to protect the earned integrity of brands, not to burnish the reputations of politicians reviled by more than half the population.

What About Trump’s Likeness?

It may not be Trump’s mugshot as IP, but it is certainly his mug, and doesn’t his right of publicity (ROP) allow him to control how his likeness is used? As discussed in context to artificial intelligence, ROP laws are statutory in half the states, common law elsewhere, and there is no federal ROP statute. Most importantly, though, ROP generally applies to commercial use of an individual’s likeness for endorsement or advertising purposes. Thus, Susan Scafidi, founder of the Fashion Law Institute is off the mark, as quoted in the New York Times stating, “Trump could, in theory, attempt to shut down sales of merch with his mug shot, not unlike the way Obama objected to appearing on a Weatherproof Garment Company billboard…”

I believe this is incorrect. Unauthorized use of a likeness (even of a political figure) for commercial advertising is likely to be a paradigmatic violation of ROP. So, if an entity were to use the Trump mugshot to promote its goods or services, Trump should have a strong legal foundation for stopping that use.[1] By contrast, reproducing the mugshot for the purpose of mocking, criticizing, or downright hating any political figure is protected speech at the core of the First Amendment, and Trump would have no legal foundation to enjoin such uses.

But what if the mugshot is reproduced (on merch or elsewhere) without accompanying commentary? If I walk through town wearing a tee shirt with the unaltered mugshot on it, observers who don’t know me would have no idea whether I am celebrating or denouncing the Georgia arraignment. So, does this ambiguity alter the First Amendment consideration such that Trump would have any grounds to stop the production of merchandise that merely reproduces the photo? Again, I would say no if only because the mugshot is a factual statement of extraordinary newsworthy value to the public. Thus, the production and distribution of merchandise bearing no communication other than the image should still be protected by the speech and press rights, even if the right of redress is not implicated.

So, that’s my 50 cents on some of the legal discussion surrounding this image, which may one day be more widely reproduced than Alberto Korda’s photograph of Che Guevara.[2] Of course, this is all nerdy food for thought because it’s hard to imagine that any of these questions will ever be presented in court. Even if Team Trump could show standing, they have bigger sheep to fleece and zero hope of controlling the perception of millions that a mugshot is usually just a photograph of a criminal.

[1] It is of course possible to blur the line between a company’s politics and its marketing, which would result in a fact-intensive inquiry into the matter. Likewise, a not-for-profit could promote a policy message that Trump does not endorse and use the mugshot to illustrate the opposition, and this should not be a violation of ROP.

[2] Ironically, this is actual and rampant infringement of the photographer’s copyright rights.

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