Former President Donald Trump is no stranger to finding ways to publicize his name and image in any way possible for the sake of a quick buck. But his latest foray into commercial exploitation of his viral mugshot image has pushed him into potentially murky legal waters that creates a significant copyright conundrum.
The saga began in August when Trump was arrested in Fulton County, Georgia on felony charges related to his efforts to overturn the state’s 2020 election results. Shortly after his high-profile booking and processing at the county jail, Trump’s campaign spied a commercial opportunity.
Capitalizing on the viral mugshot image, the campaign emblazoned Trump’s dour arrested visage onto mugs, t-shirts, bumper stickers and other swag, most bearing the slogan “Never Surrender.” Proof that a picture can be worth a thousand words (or in this case, millions of dollars), in just a few short weeks, the unlicensed Trump mugshot merch generated over $7.1 million in profits.
Here’s the controversy: Experts contend that use of the infamous photo may violate copyright law because the Fulton County Sheriff’s Office, who booked Trump and took the infamous photo, has legal ownership of it. Does the sheriff have a case against the former president? Are the Trump mugshot merch earnings illicit, and if so, will the Trump campaign owe authorities a share of the windfall?
Who Owns the Mugshot?
Under longstanding copyright principles, an entity that creates an original work — be it a photograph, a painting, lyrics to a song, a recording or a novel — typically retains exclusive rights to copy, distribute, modify, display or license the work commercially and profit from it. Using the copyrighted material without permission constitutes infringement, subject to civil damages.
For mugshots specifically, law enforcement agencies have strong claims to ownership rights under current precedent. The police bear the full cost burden of camera equipment, digital storage and photographer salaries required to produce booking photos. Given these investments of resources, a court would no doubt confer copyright ownership to the arresting agency. That means the agency has the right to release the photo as public record, and it’s reasonable to assume that no other parties are allowed to profit off the agency’s property without express permission. But in order for copyrights to be asserted in litigation, they first need to be registered with the U.S. Copyright Office — this is a step beyond the common law rights that are conferred to a work immediately upon its creation.
Has Trump Infringed Copyright Law?
By plastering the mugshot across unlicensed merchandise, the Trump campaign may have clearly infringed the Fulton County Sheriff Office’s exclusive copyrights. The shirts, mugs, stickers and other items feature Trump’s exact mugshot image without even the slightest creative alteration.This wholesale copying and subsequent commercial gain looks to present an unambiguous case of willful infringement under the law. Total damages in a civil suit could match or exceed the campaign’s $7.1 million in profits.
Is Fair Use a Valid Defense?
What is fair use? It allows limited use of copyrighted material without permission, primarily for purposes such as criticism, comment, news reporting, teaching or research purposes. However, fair use is subject to specific criteria, and commercial exploitation normally falls outside this legal scope.
Some creative works have adapted fair use for expressive, or recently, charitable purposes. For instance, soon after Trump’s arrest and booking photo, the band Green Day created a t-shirt of their 1997 album Nimrod, using Trump’s covered face in place of the original artwork with the caption: “Good Riddance.” Profits from the $35 limited-edition shirts, which were sold for only 72 hours, benefited victims of the Maui wildfires via Greater Good Music.
Has Trump exercised similar fair use by using a picture of himself, or has he misappropriated it? The Trump campaign products feature no creative transformation or commentary — simply the unlicensed image. This copying to generate merch sales is the point where a court could draw the legal line at fair use.
Gauging the Potential Outcomes
While no motions or lawsuits have been filed yet, and despite the apparent legal strength of their copyright claim, the Fulton County Sheriff’s Office may prefer reaching a quick settlement with the Trump campaign. As a cash-strapped public agency with far fewer resources for litigation than their potential opponent, they may want to avoid a prolonged legal battle, seeking only fair compensation for the unauthorized usage.
Trump and his campaign may also have incentives to settle instead of fighting the allegations. Settlement could halt damaging legal scrutiny during Trump’s potential 2024 presidential run. The campaign may be willing to pay the sheriff’s office a hefty fee.
However, the sheriff’s office could successfully claim in a lawsuit copyright infringement with evidence that would likely hold great weight in a courtroom. A story could be painted of a public agency that was allegedly robbed of millions by a former president — a president who forwent the customary government salary because he was already a billionaire.
What Are the Financial Implications?
We can gain an idea of how much the Trump campaign could potentially owe the Fulton County Sheriff’s Office. According to the U.S. Copyright Office, “Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney’s fees incurred by the copyright owner to enforce his or her rights.”
Setting a Precedent
A resolution of this case — lawsuit or no lawsuit — could set a precedent for future disputes involving the use of mugshots for commercial purposes, especially since in Trump’s case, his campaign not only financially profited but also used the commercial venture to manipulate public favor.
This brewing mugshot dispute underscores important unresolved questions about who rightfully controls such images — the individuals depicted, or the law enforcement agencies that produce them. Although they are public servants, the assets and creations generated by these parties are afforded the same copyright protections. It’s important to examine the balance between individual rights, fair use and the interests of other parties. Understanding these intricacies will contribute to the ongoing dialogue.
Patterson Thuente is fluent in the nuances of these types of legal discussions. We have decades of experience representing clients from diverse backgrounds for everything from copyrights, trademarks, patents and other facets of intellectual property law.
Contact us today with questions on protecting your assets and owning your ideas.