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Betsy Rosenblatt, a professor at Case Western Reserve University’s School of Law, said there is copyright ownership of mugshots in most jurisdictions.
“You're prohibited from using it for a number of things without authorization,” Rosenblatt said. “You’re prohibited from reproducing it, making a derivative work of it, distributing it without authorization, or that is to say distributing anything that isn't the one copy you already lawfully have, and various other things. Making a public display of it, making a public performance of it, which opens up all kinds of fascinating possibilities here.”
So will the potentially thousands of people who are already using the mugshot to make a profit get in trouble?
Rosenblatt said in order to pursue a claim for copyright infringement, the owner of the copyright, who she said is likely the Fulton County Sheriff's Department, would have to be the one to sue.
“Whether the Fulton County Sheriff's Department would decide to enforce its copyright is entirely up to them,” Rosenblatt said. “But it's also reasonable to think that the Fulton County Sheriff's Office might think, you know, this is a public document, it belongs to the world in a way, [the] copyright belongs to us. But the news about it belongs to the world. And we're not going to undertake the expense and trouble of hiring copyright counsel and sending out takedowns and cease and desist and letters, or in lawsuits.”
She said there are a few cases in recent years that portray how safe or how risky it is to do this sort of thing. In some cases, the court ended up ruling fair use, in others they ruled that the person being sued needed permission from the copyright owner. So, Rosenblatt recommends people seek out legal counsel before releasing a product commercially to ensure they have a strong fair use argument.
“What we're hearing from these various cases is, there's no easy answers to this in terms of how safe it is,” Rosenblatt said. “But it's much safer if you're making significant changes to the image. And if you're making an overt political statement, and it's much less safe, if you're not making changes to the image. And if you're using the image for more or less what the image was already used for, which is to just show that he was arrested and arraigned.”
She also said the First Amendment makes a lot of allowances for things like parody, newsworthiness, commentary and criticism. But even though mugshots are typically part of the public domain, and are sometimes released to the public, many states have relatively complicated laws regarding a person's privacy, so use them at your own risk.
