Trump may have violated copyright law by selling mugshot merchandise

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You hate to defend Trump, but that's absolutely fucked. As far as I know you can't refuse a mugshot, so you're essentially compelled to release the rights to your likeness if you're charged with a crime. I could see the logic if you're convicted (under the 13th, which is still fucked), but that's crazy before a trial/guilty verdict.

Anyway, just a layman's take. Would love to hear what an actual lawyer has to say.

doggle

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People generally don't have rights to photos of them regardless of whether they consented to having them taken. That's, like, the whole thing with paparazzi.

US copyright law is unsalvageably fucked

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IMO the difference between this and paparazzi is that you aren't legally compelled to allow the paparazzi to take photos of you. If paparazzi gets the photos then they're theirs, but you can at least try to prevent them from taking them.

US copyright law is unsalvageably fucked

Yes

wieson

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I have the right to my own image. I'm just built different.

EmpathicVagrant

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Not being charged with a couple few dozen felonies does that for a guy

antonim

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“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.”

Am I crazy or does this mean every single newspaper that has reproduced the photo (i.e. probably the majority of political newspapers in the entire world) should have asked Fulton county Sheriff's Office for permission to do it?

SomeoneSomewhere

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'Fair use' is a thing. It varies by country, and I'm not certain on where the US falls.

Selling copies on merchandise would definitely not be fair use.

Using it in news articles may be fair use under some circumstances, but probably only if you were commenting specifically on the mugshot.

PotjiePig

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News articles can use media for 'editorial' purposes which has a slightly different usage rights subset to 'commercial' purposes which tend to be much more tied down. Having said that, I would have thought that seeing it's his own mugshot and that it wasn't taken by professional creative photographer and that it was forced upon him and released to the public domain, that he would be entitled to use it as he sees fit. It's a picture of himself after all.

This almost feels like he's being picked on because he's so widely hated and that many people want to see him burn.

antonim

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As far as I see, the mugshot is being used all over the place, not just for illustration as you describe. It's become too iconic/memetic...

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First of all, there is the fair use thing, and second, they probably have, and most likely there is even a clause in the Sheriff's Office' standard disclaimer that press use is OK.

rez_doggie

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mugshots. com needs to be sued out of existance.

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The copyright is not with the person on the photo, it is with the photographer. Which in this case is the police department.

The only rights that Trump had were the rights on his own picture. Which is hard to control as a celebrity (public interest and such), and which he basically waived as he had those merch sold himself.

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I get that the copyright is traditionally held by the photographer and not the subject. I guess the issue I have with it is how Trump (or anyone charged with a crime) is legally compelled to allow it to be created.

Also, if we assume Fulton County Jail owns the copyright, could they sell mugshot merch? If yes, that's horrifically dystopian. If no, are they entitled to claw back any money made from the sale of mugshot merch?

Personally, I would like to live in the world where jails can't profit off the mugshots of their inmates.

Madison420

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It's public record anyone can use it so long as they don't do so for profit. Ie. He can use the mugshot all he wants he just can't make an profit from it.

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Also, if we assume Fulton County Jail owns the copyright, could they sell mugshot merch? If yes, that’s horrifically dystopian. If no, are they entitled to claw back any money made from the sale of mugshot merch?

They could sell mugshot merch from the copyright perspective, but there would be a load of other issues that would prevent them from doing so.

But technically, they could sue whoever is responsible for selling them and could claw back profits and damages, as this was undeniably copyright infringement for large-scale commercial gain. Look at this: Up to five years and up to 250k per offense. And that's only the punishment. The damages are between 750 and 30k, 150k if it was "willful". Plus all the usual stuff like paying lawyers and courts. The Sheriff's Office down there could buy their own donut factory from the proceedings...

riskable

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When you run for office (of any kind) you become a "public figure" and as a result the rights to your likeness are considerably diminished. If you win your rights to control how your likeness is used are even further diminished. Furthermore, if you run for a Federal office and get elected your rights are even more diminished.

Then there's an even lower level where you basically lose all rights to control your likeness: When you become President. Presidents are special from a likeness perspective because as long as they live they are, in fact, President or former President and as such cannot make claim whatsoever that their likeness is copyrighted because while they were in office their likeness became public domain (all works of the US government are public domain unless classified or given special exception).

So the day the White House updated it's website with an image of Trump any copyright claim to his likeness went out the window.

TrenchcoatFullofBats

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I understand what you're saying, and normally I would agree with you.

However, when Trump was mad at Twitter, he pushed hard to revoke Section 230, which protects social media platforms from the content their users post.

Interestingly, he stopped caring about this as soon as he started his own social media platform, which he tried his best to steal without attribution from Mastodon.

Now he is selling an image he does not own the copyright on. He can get fucked.

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Why is a photo taken of someone by state employees copyrightable?

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Simple: The Copyright lays with the Sheriff's Office.

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Government entities should not hold the copyright to anything. The point of copyright was to incentivize artistic creation and protect creators from being taken advantage of by others. A mug shot doesn't fall in the category of an artistic work and government employees that took that mug shot in the course of their duties dont need to be protected from others "taking advantage." Tax payers paid them to do what they did and something tax payers paid for shouldn't be treated as anything other than public domain. And the public domain is just that: public. Everyone can make use of it, even vermin like Trump. I fucking hate Trump. HOWEVER letting this nonsense slide because of that is not good. I would rather him be sent to prison for his crimes not punished for violating a copyright that I do not believe should exist.

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I think in this case, a copyright is well-justified. They have to publish the mugshot for some reasons, but without the copyright, such a mugshot could be abused. Having the copyright at least enables the government to have some control over this.

Just imagine having your mugshot taken, and it later turns out you are completely innocent. Still, if the mugshot was in the public domain, your neighbor with whom you have a dispute over the height of cut lawn could just print your face on every billboard in the country.

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Except it is the accused spreading the photo of their own accord. The argument that theyre being protected by prosecuting them for copyright infringement doesn't make sense.

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The argument that theyre being protected by prosecuting them for copyright infringement doesn’t make sense.

No, and it doesn't need to, as they are unrelated.

They do own the copyright. The basic intention is to protect the innocent, but it does not rule out any other uses.

TrenchcoatFullofBats

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The issue isn't that the photo is copyrightable, it's that a photo taken by a government employee, paid with tax dollars, taken with a camera purchased by tax payers is not copyrightable nor owned by Trump, and he can't sell something he doesn't have the right to sell.

The photo is in the public domain, which is covered by copyright laws.

https://en.wikipedia.org/wiki/Copyright_status_of_works_by_the_federal_government_of_the_United_States

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That is not how public domain works, and the article contends that the copyright is owned by the law enforcement agency that took the mugshot. If the photo was public domain it would be free for anyone to use as they see fit.

TenderfootGungi

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Whomever takes a picture owns the copyright. If you hand your camera to a stranger to take a family photo, legally that stranger owns the copyright on your family photo. In this case the county or county employee owns the copyright. And they should be suing anyone profiting from its use.

Edit: consent is irrelevant. That is a totally separate privacy issue.

Ullallulloo

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Anything the government produces should be in the public domain.

HawlSera

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I thought that was the case

SheeEttin

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Federally, yes. Not necessarily for state or other levels.

Ullallulloo

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Not in most states.

AngryAnusHornets

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Permanently Deleted

tmyakal

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"Publicly funded" doesn't mean "publicly owned." Plenty of states give grants and tax incentives to film productions to entice them to work there. That's tax dollars going into a copyrighted work.

And being of a public figure has absolutely no bearing on copyright. If it did, paparazzi wouldn't exist, because they wouldn't be able to effectively sell their photos.

Nioxic

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Wouldnt the government have the rights then?

ryathal

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For photos the copyright belongs to the photographer. If this was a federal employee (it wasn't) , then there's no copyright. If it's a state employee then it's possible it could be copyright or you could argue that the ban on copyright for government works is incorporated to states as well. There's also the technicality that if it's a contractor then there's copyright no matter what.

iegod

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Iamdanno

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Trumps attorney: "Try not to break any laws on the way to the parking lot."

brimnac

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His lawyer wasn’t even supposed to be there, that day.

Tb0n3

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I hate that a shitty picture taken as part of legal proceedings is copyrightable. Just like research paid for by the government should be free and unencumbered, so should things produced by the government itself.

mammut

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Permanently Deleted

CrabAndBroom

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Yeah I think most (all?) NASA stuff is IIRC. If Trump was a planet there'd be no worries.

Hobbes

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It may not be allowed to use NASA images for commercial purposes though.

Edit: looked into it. Not only is it allowed, permission is not even required to use it commercially.

nickhammes

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Employees of the federal government generate IP that generally goes into the public domain. States can decide whether their employees, or municipalities ' employees' IP goes into the public domain or not. By default, it does not, and from briefly looking into it, it seems most states accept the default, and very few put it into the public domain, or allow for broad use of state-generated IP.

It makes sense, and it isn't a rule narrowly targeted at mugshots, but I'm not sure how to interpret it as a good thing. More government workers' IP going into the public domain seems like it would better serve the public interest. Even if it allows Trump to do nonsense like this.

bob_wiley

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Permanently Deleted

ji59

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I think the reason for this copyright is so nobody can massively shame the convinced. But nobody thought anyone would be proud about it so much to share it themselves.

elbarto777

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He's not proud of it. He's just saying he is, so that people stops laughing at him. The fucked up pay is that he's making money out of it. But you bet he's seething over that mugshot. Especially because he said Hilary Clinton would be in jail. And he was technically in jail first.

atzanteol

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The reason for the copyright is that you automatically get a copyright on any photograph. It seems unlikely the sheriff's office would want to enforce it. This is all wishful thinking.

CoderKat

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Naw, practically everything is copyrighted if it meets some fairly simple rules. Copyrighted is the default and the rules exclude works from being copyrighted.

Copyright can't stop what you're saying. People obviously are shaming Trump and other criminals. News articles typically use mugshot photos. Copyright can't stop memes (and trying to do so usually just causes the Streisand effect).

Tb0n3

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That works out so well for Florida man.

merridew

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Federal government works generally aren't domestically copyrightable. They are considered to be in the public domain within the USA.

ETA: I will add that that USA has some of the best protections for Fair Use. But Fair Use definitely doesn't extend to selling it at that scale.

These are the tests for Fair Use:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; [very commercial]
the nature of the copyrighted work; [photographic, publicly available]
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and [100% of it]
the effect of the use upon the potential market for or value of the copyrighted work. [Effectively eliminated the value to the copyright holder]

stopthatgirl7

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This isn’t federal, though. This is state.

merridew

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Yes exactly. It isn't in the public domain, and so is still protected by copyright, and arguably fails the test for Fair Use. But OP's earlier comment suggested they were not aware that federal works sit in the public domain.

https://garson-law.com/can-state-governments-own-rights-in-copyright/

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It is absurd that that would matter.

CmdrShepard

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The law is a federal law though.

dogslayeggs

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It is a federal law that only applies to federal works. This is a state case with a state mugshot that is a state work.

CmdrShepard

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This isn't accurate as there is no such thing as a federal work or state work nor is there any actual court case. The law covers the whole country and it's explained in the first sentence of the article:

Donald Trump’s campaign may have violated United States copyright law by selling merchandise featuring the former president’s mugshot, legal experts have warned.

dogslayeggs

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US Copyright law is a federal law about how copyrights are protected, but the posted regulation is about what federal work is copyrighted and NOT applicable to how state work is copyrighted. It even says it right there in the title: "Copyright_status_of_works_by_the_federal_government_of_the_United_States." The jail photographer is not an employee of the federal government, nor is the trial an activity of the federal government. This photo was not a work by the federal government.

CmdrShepard

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Woops I didn't realize you were referring to the upper level comment and not the main post. My apologies!

radix

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The government office could try to assert copyright, but it would be an uphill battle.

As a matter of public policy “the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decision, administrative rulings, public ordinances, or similar types of official legal materials.” U.S. Copyright Office Practices § 313.6(C)(2).

A mugshot isn't a law, so maybe this doesn't apply cleanly, but the copyright office clearly isn't rushing to hand out rulings in favor of publicly created works.

Tb0n3

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I submit to you copyrighted laws.

It's one example. I don't remember exactly which state, but I remember clearly hearing that one state or more has the only law resource being a LexisNexis book of laws. Copyrightable because it's technically "annotated", but the non-annotated versions are not available.

crystalmerchant

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like he gives a flying fuck

random_character_a

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I heard he gives a 1 up mushroom. Not a flying one.