QuestionWho owns the copyright to mugshots?
Hopes&Fears answers questions, with the help of people who know what they're talking about. With so many mugshots floating around the web, we wondered, is this legal?
New Media Rights
It really depends. In general, mugshots taken by federal law enforcement agencies (such as federal prisons and the FBI) are in the public domain and are not protected by copyright law, because it is a photo taken by a federal employee as part of their work for the federal government.
However, even if a photo is in the public domain, there may be other relevant rights that could restrict the use of the photo in certain contexts.
Mugshots taken by state law enforcement may or may not be in the public domain since state, city and other local entities can make their own decisions on whether or not to release mugshots and other photos taken by their employees into the public domain. Some states may also chose to restrict access to some mugshots under certain circumstances for reasons unrelated to copyright law.
If you have a question about who owns the rights to a particular photo, it is always a good idea to reach out to an attorney because even tiny details about where and how a mugshot was taken can come into play.
While that basically covers the legality, it’s still recommended to always ask an attorney about the specific instance that you’re questioning. So, we asked another attorney if it would be legal to sell a t-shirt with Lindsay Lohan’s mug shot on it. She was able to give us some general knowledge but as with most attorneys, was reluctant to give broad legal advice.
Associate Attorney at Lazarys & Lazarus P.C.
Generally, copyright belongs to the creator (so the photographer), although there are exceptions. For example, if the photo is taken by an employee in the course of his or her employment, then the copyright belongs to the employer and not the employee. So in order to answer the question you'd have to look at a few different factors, such as who took the photo, who they were employed by, if it was within the scope of their employment, etc. A police officer or police department employee taking a photo would most likely be doing so in the scope of their employment, so the mugshot would most likely belong to the police department (or whoever employed the photographer).
That’s as close as you’re going to get to an official lawyer’s answer so we turned to someone who would be a little more willing to speculate. Greg Allen is an artist, art writer and researcher who has specialized in issues of copyright and fair-use for many years. What say you, art expert?
Appropriation art expert
Oh, a real-world, not-an art world question? Well, I'm not a lawyer, but it's my understanding that as public records, mug shots are not copyrighted. Instead, they are subject to the open records law statutes of whatever jurisdiction controls them. I.e., state for police, cities, counties; fed for federal agencies. Some states are very free with them, some publish them themselves or regularly release them to local media, others require a FOIA/Sunshine law/Open Records request. And I imagine that since the era of COPS, there are states that license the mug shot data to various 3rd party companies and data brokers.
There have been some articles on the rise of mug shot ransom sites that try to extort money from people so their mug shot won't appear so high in their search results, but it seems like that peaked a couple of years ago, and/or was met with some anti-revengeporn-style legislation? I don't know.
As far as merchandizing mugshots, I can't think of a copyright reason why you couldn't sell mug shot merch. There are probably trademark-related defenses that would make it a pain in the ass, though, especially if someone has licensing deals, or their name is associated closely with a brand. At best, though, it might be enough to just put a disclaimer on there somewhere for "unauthorized" or "unendorsed" product.
Lindsay Lohan is shit out of luck.
Verdict: The public owns the copyright to a mugshot if we’re speaking in broad terms, but individual circumstances, as well as local and district laws can always cause a problem. If you’re facing a potential legal issue always ask an attorney. After all, a man who represents himself has a fool for a client.
COVER ILLUSTRATION: Sergii Rodionov