Innocent Until Proven Posted: Regulating Online Mugshot Publication with Intellectual Property Law

Journal of Intellectual Property Journal of Intellectual Property

Law Law

Volume 30 Issue 1 Article 4

December 2022

Innocent Until Proven Posted: Regulating Online Mugshot Innocent Until Proven Posted: Regulating Online Mugshot

Publication with Intellectual Property Law Publication with Intellectual Property Law

Amanda Cheek

University of Georgia

, [email protected]

Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl

Recommended Citation Recommended Citation

Amanda Cheek,

Innocent Until Proven Posted: Regulating Online Mugshot Publication with Intellectual

Property Law

, 30 J. INTELL. PROP. L. 112 (2022).

Available at: https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

This Notes is brought to you for free and open access by Digital Commons @ University of Georgia School of Law.

It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital

Commons @ University of Georgia School of Law. Please share how you have bene9ted from this access For more

information, please contact [email protected].

Innocent Until Proven Posted: Regulating Online Mugshot Publication with Innocent Until Proven Posted: Regulating Online Mugshot Publication with

Intellectual Property Law Intellectual Property Law

Cover Page Footnote Cover Page Footnote

J.D. Candidate, 2023, University of Georgia School of Law. Sincere thanks to Professor Jean Mangan for

guidance and encouragement.

This notes is available in Journal of Intellectual Property Law: https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

112

INNOCENT UNTIL PROVEN POSTED:

REGULATING ONLINE MUGSHOT PUBLICATION

WITH INTELLECTUAL PROPERTY LAW

Amanda Cheek*

*J.D. Candidate, 2023, University of Georgia School of Law. Sincere thanks to Professor Jean

Mangan for guidance and encouragement.

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 113

TABLE OF CONTENTS

INTRODUCTION ............................................................................................ 114

II.

BACKGROUND .............................................................................................. 116

A. A

HISTORY OF MUGSHOTS: LABELING IMAGES “CRIMINAL” .... 116

B. M

UGSHOTS AS A DEVICE OF PUBLIC SHAMING ............................ 118

C. R

IGHT TO PRIVACY ............................................................................. 119

1. Historical Basis for Right to Privacy ......................................... 119

2. Modern Privacy Rights. ............................................................... 120

D. T

HE RIGHT OF PUBLICITY ................................................................. 122

E. C

OPYRIGHT INFRINGEMENT ............................................................ 123

III.

ANALYSIS ....................................................................................................... 125

A. P

UBLIC MUGSHOT ACCESS THREATENS THE PRIVACY RIGHTS OF

ARRESTEES ........................................................................................... 125

1. Privacy Interests in One’s Image. .............................................. 125

2. Privacy Interests in Criminal Record………………………116

B. T

HE VIABILITY OF LITIGATION FOR AGGRIEVED ARRESTEES:

STATE PRIVACY TORTS…………………………………….......118

1. Intrusion Upon Seclusion ........................................................... 129

2. Misappropriation and the Right of Publicity………………..121

3. Publicity of Private Facts…………………………………...122

4. False Light…………………………………………………124

C. T

HE VIABILITY OF LITIGATION FOR AGGRIEVED ARRESTEES:

BALANCING THE NEED FOR MUGSHOTS AGAINST PRIVACY

INTERESTS: ARE MUGSHOTS OBSOLETE?……………………..127

IV.

CONCLUSION ..................................................................................................... 138

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

114 J. INTELL. PROP. L. [Vol. 30:2022]

I. INTRODUCTION

The maturity of the internet has created a highly interconnected culture.

Developments in social platforms allow for communication and discourse

among geographically dispersed loved ones, casual acquaintances, and the

anonymous.

The online space is also information rich. An amateur researcher

can uncover various features of a person’s life simply by knowing their name.

When seeking to keep private information related to intimate details of which

the public has little concern, such as an individual’s medical records, it is logical

that the information should remain private. A grey area, however, emerges when

the interests of public safety or public disclosure are implicated in the

information. Mugshots taken during the booking process of a criminal arrest

inhabit this grey area. The interests of the public appear at first glance to be

strong: the public has an interest in being informed of perpetrators of crime.

Even so, the publication of mugshots online encompasses far more than data on

crime commission, but rather comprises an essential element of one’s physical

being: a photograph of their face. This photograph is not the posed and edited

selfie which headlines their social media page. It is a head-on, brightly lit image

taken either following or preceding a search of their bodies, taking their

fingerprints, and confiscating their personal belongings. It is an image that

predates this individual’s day in court or the determination of guilt. Mugshots do

not disappear when the charge is dropped or when the individual is found

innocent. These mugshots, once taken, exist in the world of open records.

They

are available upon request, frequently along with information about the arrest,

including “the person’s name, arrest date, and birth date.”

The internet created a new home for mugshots, and not just those of widely

known criminals, but of your high school soccer coach, your mother, your

partner, or yourself. This new home is in the form of privately controlled

How Has Social Media Emerged as a Powerful Communication Medium?, UNIV. OF CAN. W.,

https://www.ucanwest.ca/blog/media-communication/how-has-social-media-emerged-as-

a-powerful-communication-medium/ (last visited Nov. 1, 2022).

Andrea Bartz & Brenna Ehrlich, The dos and don’ts of Googling people, CNN: BUS. (Dec. 7,

2011, 5:17 PM), https://www.cnn.com/2011/12/07/tech/social-media/netiquette-google-

stalking.

Are Mugshots on Public Record?, NET NEWS LEDGER (May 7, 2021),

https://www.netnewsledger.com/2021/05/07/are-mugshots-on-public-record/.

Mugshot Websites, GA. DEP’T OF L.’S CONSUMER PROT. DIV.,

https://consumer.georgia.gov/consumer-topics/mugshot-websites (last visited Nov. 1,

2022).

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 115

websites, such as arrests.org,

mugshots.com,

or BustedNewspaper.com.

These

websites, however, are not maintained by public discourse heroes who relish in

the opportunity to keep the community informed on crime. Instead, these

websites commercialize the social shame of the individual depicted in the

mugshot by requiring a fee to remove the record.

Not every person depicted in

a mugshot, however, has discretionary money to pay the often-hefty fees for

removal.

By following popular investigative journalism reports on the commercial

mugshot publication, analogizing the practices to extortion, the mugshot

industry garnered skeptical attention.

As a result, states began combatting

mugshot publication by banning removal fees, limiting the parties to which law

enforcement can provide mugshots, and requiring removal upon request.

These legislative strategies have questionable constitutional implications under

First Amendment jurisprudence and require a significant showing from an

aggrieved arrestee.

A subset of intellectual property doctrines may be apt to

remedy what state legislation cannot. Right of publicity, right to privacy, and

over an image of themselves: all seek to protect an individual’s interest in

disseminating materials that implicate some uniqueness in the owner. In section

II, this Note explores these intellectual property doctrines generally. In section

III, the Note determines the applicability of those doctrines to regulating online

mugshot publication and identifies the most advantageous subset for this goal.

This Note concludes by proposing that any administrative benefit of a mugshot

is outweighed by several policy factors, including that mugshots implicate many

critical privacy interests.

ARRESTS.ORG, https://arrests.org (last visited Nov. 1, 2022).

MUGSHOTS.COM NEWS, https://mugshots.com (last visited Nov. 1, 2022).

BUSTED NEWSPAPER, https://bustednewspaper.com (last visited Nov. 1, 2022).

Adam Tanner, Shakedown or public service? Mug shot websites spread, REUTERS (Sept. 20, 2012,

10:30 AM), https://www.reuters.com/article/us-usa-internet-mugshots/shakedown-or-

public-service-mug-shot-websites-spread-idUKBRE88J0R020120920.

Samantha Schmidt, Owners of Mugshots.com accused of extortion: They attempted 'to profit off of

someone else's humiliation,' C

HI. TRIB., https://www.chicagotribune.com/business/ct-biz-

mugshot-website-owners-extortion-20180518-story.html (“Those who can’t afford to pay

into this scheme to have their information removed pay the price when they look for a job,

housing, or try to build relationships with others. This is exploitation, plain and simple.”).

Eumi K. Lee, Monetizing Shame: Mugshots, Privacy, and the Right to Access, 70 RUTGERS U. L.

REV. 557, 567 (2018).

Id. at 610-11.

Id. at 613 (noting that the statutes “still place an onerous burden on individuals to find the

mugshot companies, which are often sham entities and challenging to track down[] and

petition them”).

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

116 J. INTELL. PROP. L. [Vol. 30:2022]

II. B

ACKGROUND

A. A

HISTORY OF MUGSHOTS: LABELING IMAGES “CRIMINAL”

A modern “booking photograph,” or a mugshot, is taken upon the arrest of

an individual, typically for identification purposes.

Images of this kind predate

the booking context. Photographing “racial and religious minorities of a

dominant society” was a common attempt to discern physical characteristics

correlated with a disposition for committing crimes,

a practice now completely

discredited as junk science.

The practice of taking or disseminating images of

individuals suspected of or known to be involved with crime in the United States

began in the mid-nineteenth century, virtually as soon as methods of

photography became widely available.

Before the standardized version of

mugshots, law enforcement relied on collections of images of individuals known

as “rogue galleries,” purportedly to familiarize themselves with those suspected

of committing crimes.

It did not take long for images of those suspected of

crime to seep outside police precincts. It became common practice to display the

galleries to the public, often in frames and with the depicted individual’s cheeks

tinted pink, as entertainment for the public.

In 1886, people in New York City

could read ‘Professional Criminals of America,’ a book containing over 200 mugshots

to educate the public on repeat offenders.

The modern mugshot form was developed by French anthropologist

Alphonse Bertillon, who developed a photography style to aid law enforcement’s

See, e.g., GA. CODE ANN. § 35-1-19(a) (West 2022) (describing the booking process to

include the taking of a booking photograph).

Nicole R. Fleetwood, Racist police practices like mug shots normalize the criminalization of Black

Americans, N

BC NEWS: THINK (Aug. 6, 2020, 8:32 PM),

https://www.nbcnews.com/think/opinion/racist-police-practices-mug-shots-normalize-

criminalization-black-americans-ncna1235694.

Ramin Skibba, The Disturbing Resilience of Scientific Racism, SMITHSONIAN MAG., (May 20,

2019), https://www.smithsonianmag.com/science-nature/disturbing-resilience-scientific-

racism-180972243/.

Pete Brook, America’s oldest mugshots show the naked faces of the downtrodden, criminal, and

marginalized, T

IMELINE (Aug. 5, 2017), https://timeline.com/americas-oldest-mugshots-

show-the-naked-faces-of-the-downtrodden-criminal-and-marginalized-1100045af179.

Id.

Livia Gershon, The Origins of the Mug Shot, JSTOR: DAILY (May 7, 2021),

https://daily.jstor.org/the-origins-of-the-mug-shot/.

Id.; THOMAS F. BYRNES, PROFESSIONAL CRIMINALS OF AMERICA (1886).

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 117

detection of recidivists.

Bertillon would photograph subjects twice, once head-

on and once in profile.

Bertillon termed the set of images as a “portrait parlé,”

or a “speaking image,” because the image included a description of the subject

as well as information on the subject’s physical description, family, and

occupation.

As the practice of rogue galleries diminished, a shift away from

mugshots began in the mid-twentieth century, and they were only featured

occasionally in newspapers or true crime magazines.

The rise of the digital age and the invention of the internet drastically

transformed mugshot use.

The images, once temporarily displayed in a gallery

or newspaper that would soon be discarded, can now live indefinitely online.

Websites with mugshots as their sole content began to emerge around 2011.

By 2013, the practice was ubiquitous:

[T]here were over eighty mugshot websites such as

Mugshots.com, MugshotsUSA.com, BustedMugshots.com,

and more local versions like Florida.Arrest.org. One of the

largest sites, Mugshots.com, has between fifteen and twenty

million mugshots available for viewing on its site. These

companies use automated software that scrapes mugshot

images from local law enforcement websites and seamlessly

transfers them to an online mugshot gallery[] without human

assistance.

Removing a mugshot from these websites costs hundreds of dollars, and

payment does not guarantee the image’s complete removal from the website’s

competitors or the rest of the internet.

In between the time of posting and

removal, the image could be taken from a mugshot website and transported to

other platforms, including Facebook groups or sub-Reddits.

Gershon, supra note 18; Biographies, NLM, https://www.nlm.nih.gov/

exhibition/visibleproofs/galleries/biographies/bertillon.html (last updated June 5, 2014).

Gershon, supra note 18.

Id.

Lee, supra note 10, at 565.

Id.

Id. at 566.

Id.

Id. at 567.

See, e.g., Arrest Mugshots, FACEBOOK, https://www.facebook.com/ArrestMugshots/ (last

visited Nov. 29, 2021) (representing an example of a webpage dedicated to posting

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

118 J. INTELL. PROP. L. [Vol. 30:2022]

B. M

UGSHOTS AS A DEVICE OF PUBLIC SHAMING

The public attaches a highly stigmatized label of criminality to individuals

associated with or convicted of crimes.

This stigma creates a high barrier to

involvement in necessary realms of social life, including “employment

opportunities, voting rights, access to public housing, student financial aid, and

social service benefits . . . .”

The attachment of the criminal label is therefore

objectively undesirable for most people. It follows that the publication of

mugshots, either by for-profit websites or news media, contributes to the

attachment of this label.

Once the label is attached, a shaming process can begin. A surprising source

of this shaming is law enforcement. Take, for instance, the Dodge County,

Wisconsin sheriff’s office. In August 2019, the Dodge County sheriff’s office

announced it would begin posting the mugshots of individuals detained for

possibly Driving Under the Influence on Facebook.

The post was not made

for administrative documentation. Instead, it was an express attempt to publicly

shame the depicted individuals as punishment for a crime for which they had not

yet been convicted. The office said, “[i]t is always our hope that we can gain

voluntary compliance with the law, but if this choice is made, it will become a

public choice.”

This practice is not unique to Dodge County. The police in

Flint, Michigan conducted a similar publicity scheme for individuals arraigned in

connection with prostitution, and other jurisdictions vowed to do the same.

The public also partakes in publicly shaming individuals arrested for a crime.

Take, for example, the Facebook Group entitled “United Reporting – Local Crime

mugshots); Hot Mugshots, REDDIT, https://www.reddit.com/r/hotmugshots/ (last visited

Nov. 29, 2021) (representing an example of a webpage dedicated to posting mugshots).

Kelly A. Moore et al., Self-stigma among Criminal Offenders: Risk and Protective Factors, STIGMA

HEALTH (Aug. 2018), https://www.ncbi.nlm.nih.gov/pmc/

articles/PMC6157751/pdf/nihms864803.pdf.

Simone Ispa-Landa & Charles E. Loeffler, Indefinite Punishment and the Criminal Record:

Stigma Reports Among Expungement-Seekers in Illinois, 54 C

RIMINOLOGY 387, 389 (2016)

(citations omitted), https://onlinelibrary.wiley.com/doi/epdf/10.1111/1745-9125.12108.

Simon Chandler, Increasing Police Use Of Social Media Shaming Carries Grave Privacy Risks,

ORBES (Aug. 18, 2019, 12:01 PM),

https://www.forbes.com/sites/simonchandler/2019/08/18/increasing-police-use-of-social-

media-shaming-carries-grave-privacy-risks/?sh=4bf79f817beb.

Id.

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 119

News.”

This group is dedicated to providing California arrest information to its

followers “as a courtesy resource for the general public.”

The group

administrators make daily posts, including mugshots and corresponding arrest

information, such as the name and age of those arrested in the region.

Group

members are permitted to comment on these posts; for instance, there is a

posting where a commenter remarked, “too bad we [do not] use the death

penalty anymore,” regarding a man on trial for murder or another post where a

commenter utilized an animated image known as a “.gif” to mock an arrestee’s

appearance.

Publicly shaming individuals associated with crime is not necessarily standard

across arrestee demographics. When associated with crime, white individuals are

often permitted to retain their presumption of innocence in a way that arrestees

of other races are often not. White arrestees are often depicted in media by their

university headshot or yearbook photo, while arrestees of color, arrested for the

same crime, are shown by their mugshot.

C. R

IGHT TO PRIVACY

1. Historical Basis for Right to Privacy

The idea that all American citizens have a right to privacy is a general

proposition with authority from various sources.

Although the Constitution

makes no explicit mention of “privacy,” the United States Supreme Court has

acknowledged this implicit right in several forms, including in Fourth and

United Reporting – Local Crime News, FACEBOOK https://www.facebook.com/United-

Reporting-Local-Crime-News-430791916971524/ (last visited Nov. 29, 2021).

Id.

Juan S. Hernandez, Comment to United Reporting – Local Crime News, FACEBOOK (Sept. 25,

2021), https://www.facebook.com/United-Reporting-Local-Crime-News-

430791916971524/; Gwen Wolverton, Comment to United Reporting - Local Crime News,

ACEBOOK (Sept. 23, 2021), https://www.facebook.com/United-Reporting-Local-Crime-

News-430791916971524/.

Jenée Desmond-Harris, These 2 sets of pictures are everything you need to know about race, crime, and

media bias, V

OX (Apr. 1, 2015, 3:40 PM), https://www.vox.com/2015/4/1/8326315/media-

bias-black-mughsots; Caroline Sieda, Arrested for same crime, in newspaper white suspects get

yearbook photos, black suspects get mugshots, B

OING BOING (Mar. 31, 2015, 7:20 AM),

https://boingboing.net/2015/03/31/arrested-for-same-crime-in-ne.html.

See Jeffrey M. Shaman, The Right of Privacy in State Constitutional Law, 37 RUTGERS L.J. 971,

972 (2006) (“The right of privacy is a broad concept, used in diverse contexts to refer to a

variety of claims or entitlements.”).

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

120 J. INTELL. PROP. L. [Vol. 30:2022]

Fourteenth Amendment jurisprudence.

State constitutions and courts also

provide authority for the recognition of the right to privacy.

Additionally, one piece of scholarship is hugely influential in developing

privacy law. Louis Brandeis and Samuel Warren’s ‘The Right to Privacy’ is

considered the seminal plea for privacy recognition in tort law at a time when

injunctive relief was unavailable unless there was an injury to physical property.

Brandeis and Warren channeled their contempt for the nineteenth-century media

publishing private affairs in newspapers, including the “unauthorized circulation

of portraits,” into a demand for legal protection for one’s privacy.

The authors

asked and received. Following the article’s publication, several states took notice

and began applying Brandeis and Warren’s privacy principles by way of

legislation and court opinions, thereby creating the first instances of a cause of

action in tort for a violation of the right of privacy.

2. Modern Privacy Rights.

Modern privacy rights protect against four forms of invasion: unreasonable

intrusion into the seclusion of another, appropriation of another’s likeness,

unreasonable publicity given to another’s private life, and publicity that

unreasonably places another in a false light before the public.

These four

wrongs collectively protect against “interference with the interest of the

individual in leading, to some reasonable extent, a secluded and private life, free

from the prying eyes, ears and publications of others.”

The first form of privacy invasion involves the intentional and objectively

unreasonable intrusion “upon the solitude or seclusion of another or [their]

private affairs or concerns.”

This intrusion neither needs to be physical nor

result in any publicity given to the affairs or concerns, but it does require that the

See, e.g., Katz v. United States, 389 U.S. 347, 350 (1967) (holding that the Fourth

Amendment “protects individual privacy against certain kinds of governmental intrusion”);

Lawrence v. Texas, 539 U.S. 558, 578 (2003) (relying on the Fourteenth Amendment and

notions of privacy in striking down a state law which criminalized two people of the same

sex engaging in sexual conduct).

Shaman, supra note 40, at 974 (“State constitutions, after all, are an important source of

protection for individual rights and liberties, including the right of privacy.”).

Benjamin E. Bratman, Brandeis and Warren’s ‘The Right to Privacy and The Birth of Right to

Privacy’, 69 TENN. L. REV. 623, 624, 633 (2002).

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 195

(1890).

Bratman, supra note 43, at 643.

RESTATEMENT (SECOND) OF TORTS § 652A (AM. L. INST. 1977).

Id. cmt. b.

RESTATEMENT (SECOND) OF TORTS § 652B (AM. L. INST. 1977).

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 121

intrusion be into a private place or affair.

For instance, the examination of the

public record in search of an individual is not protected when the records are

open to the public.

The second form of privacy intrusion involves appropriating another’s name

or likeness for the user’s use or benefit.

The benefit need not be for commercial

gain, but the pecuniary benefit is frequently required to state a claim under many

state statutes.

It is important to note that this claim only operates to serve the

interest it protects: private affairs. Thus, merely presenting an individual’s name

or likeness to the public is unactionable without appropriating the value

associated with the name or likeness for the defendant’s benefit.

For this

reason, the quintessential application of this tort is the use of a celebrity’s name

or likeness for the defendant’s commercial gain.

Even so, many states allow the

claim in equal force where there has been a non-pecuniary benefit and where the

plaintiff does not have celebrity status.

Nevertheless, requiring commercial gain

by the defendant essentially transforms the appropriation privacy tort into the

distinct tort of the violation of the right of publicity,

discussed in section II.D

below.

The third form, publicizing an aspect of the private life of another, is

actionable if the publicity is objectively offensive and the content is not of

legitimate concern to the public.

These conditions—offensiveness and

legitimate concern—are not self-defining. The Second Restatement of Torts

describes “highly offensive” publicity as requiring a reasonable person be

Id. cmt. c.

Id.; Compare Jones v. U.S. Child Support Recovery, 961 F. Supp. 1518, 1522 (D. Utah

1997) (“A public record defense to a claim of intrusion upon seclusion is limited to records

open to the general public, not just to any public record.”), with Benitez v. KFC Nat’l Mgmt.

Co., 714 N.E.2d 1002, 1009 (Ill. App. Ct. 1999) (finding a cause of action based on intrusion

upon seclusion exists where employer spied on female employees through hole in ceiling of

women’s bathroom).

RESTATEMENT (SECOND) OF TORTS § 652C (AM. L. INST. 1977).

Id. cmt. b.

Id. cmt. d.

Id. cmt. b., illus. 1; see, e.g., Butler v. Enter. Integration Corp., 459 F. Supp. 3d 78, 104

(D.D.C. 2020) (“[T]he typical case involves ‘using a celebrity's . . . name or picture in

advertising without his consent’ . . . .” (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d

1222, 1229 (7th Cir. 1993))).

See, e.g., Minnifield v. Ashcraft, 903 So. 2d 818, 827 (Ala. Civ. App. 2004) (upholding a

claim for appropriation where tattoo artist submitted image of non-celebrity plaintiff’s body

to magazine for publication); Butler, 459 F. Supp. 3d at 104 (finding that a misappropriation

claim does not necessarily require commercial benefit).

Minnifield, 903 So. 2d at 826.

Infra note 74.

RESTATEMENT (SECOND) OF TORTS § 652D (AM. L. INST. 1977).

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

122 J. INTELL. PROP. L. [Vol. 30:2022]

“justified in feeling seriously aggrieved by it . . . .”

Matters of legitimate concern

to the public include “truthful information contained in official court records

open to public inspection.”

The fourth and final form of privacy intrusion is publicity about a person,

which places that person in a false light.

Liability exists where the information

being made public is untrue.

One is liable when the publicized information is

objectively highly offensive, and the alleged tortfeasor “had knowledge of or acted

in reckless disregard as to the falsity of the publicized matter and the false light

in which the other would be placed.”

While these four torts differ in their elements, they all serve as a form of

redress for an individual whose privacy has unjustifiably been infringed upon. In

the context of mugshots, arrestees commonly feel a sense of privacy in their

mugshot, which is violated upon publication.

D. T

HE RIGHT OF PUBLICITY

In some jurisdictions, the privacy right against appropriation exists as a

distinct right, also known as the right of publicity.

The right of publicity is “the

inherent right of every human being to control the commercial use of [their]

identity.”

While the privacy right against appropriation is based on privacy

principles,

the right of publicity is rooted in preventing unfair competition.

Because the right of publicity is largely defined by state law,

the elements to

establish a cause of action may vary.

There are two general theories on the

necessary elements to prove a cause of action for an infringement on the right

of publicity.

The first approach requires that the defendant use the plaintiff’s

persona for the defendant’s advantage without the plaintiff’s consent and in such

Id. cmt. c.

Id. cmt. d.

RESTATEMENT (SECOND) OF TORTS § 652E (AM. L. INST. 1977).

Id. cmt. a.

RESTATEMENT (SECOND) OF TORTS § 652E (AM. L. INST. 1977).

Lee, supra note 10, at 560-61.

31 THOMAS P. BOGGESS, V, CAUSES OF ACTION 121 § 1 (2d ed. 2006) (discussing the “the

interrelated nature of the right of publicity and the appropriation tort of the right of

privacy”).

Id. § 2 (citations omitted).

Supra text accompanying notes 41-45.

31 THOMAS P. BOGGESS, V, CAUSES OF ACTION 121 § 2 (2d ed. 2006) (citations omitted).

Id.

Id. § 5.

Id.

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 123

a way that is likely to cause injury to the plaintiff.

The second, the Restatement

approach, is slightly different. First, it requires that the “defendant, without

permission, [use] some aspect of identity or persona in such a way that plaintiff

is identifiable from defendant's use.”

It also requires that the defendant's use

be likely to “cause damage to the commercial value of that persona” rather than

requiring any injury.

Many states have enacted legislation protecting the right

of publicity, with some providing civil remedies

and others threatening criminal

liability.

E. C

OPYRIGHT INFRINGEMENT

A copyright infringement claim requires two key elements: the ownership of

a valid copyright and unauthorized use of the original components of the

copyrighted work.

While copyright protection begins the moment a work of

original authorship is created,

a copyright owner must register the copyright

with the U.S. Copyright Office to bring an action for copyright infringement.

Although copyright law initially served to protect written works, pictorial works

are copyrightable per 17 U.S.C. § 102(a)(5), which includes “pictorial, graphic,

and sculptural works” in works of authorship.

This expression includes “not

only works of art in the traditional sense but also . . . photographs and

reproductions of them . . . .”

Id.

See, e.g., CAL. CIV. CODE § 3344(a) (West 2022) (“Any person who knowingly uses

another's name, voice, signature, photograph, or likeness, in any manner, on or in products,

merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of,

products, merchandise, goods or services, without such person's prior consent . . . shall be

liable for any damages sustained by the person or persons injured as a result thereof.”).

See, e.g., N.Y. CIV. RIGHTS LAW § 50 (McKinney 2022) (“A person . . . that uses for

advertising purposes, or for the purposes of trade, the name, portrait or picture of any living

person without having first obtained the written consent of such person . . . is guilty of a

misdemeanor.”).

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

60 ELIZBETH WILLIAMS, CAUSES OF ACTION 553 § 5 (2d ed. 2013).

Rogers v. Better Bus. Bureau of Metro. Houston, Inc., 887 F. Supp. 2d 722, 727 (S.D. Tex.

2012).

60 ELIZBETH WILLIAMS, CAUSES OF ACTION 553 § 2 (2d ed. 2013) (citing 17 U.S.C. §

102(a)(5)).

Id. § 5.

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

124 J. INTELL. PROP. L. [Vol. 30:2022]

There are several requirements to prove ownership of a valid copyright,

including originality by the author and copyrightability of the content.

The

author of a photographic work is, by default, the photographer, as they are the

one who fixes an intangible expression into a tangible medium.

If the

photograph, however, is taken in furtherance of one’s employment, the employer

is the owner of the copyright.

For a work to be considered original to the author, it “must have been

independently created by the author and possess at least some minimal degree of

creativity.”

Even so, the threshold for creativity is low, and even the slightest

creativity will suffice.

A visual depiction of a person by photograph qualifies if

it represents the photographer’s creative work.

Creative decisions regarding

“lighting, shading, angle, background, and so forth have been recognized as

sufficient to convey copyright protection.”

In the context of photographs taken by law enforcement during the booking

process, the author of the mugshot photograph is the law enforcement agency.

Thus, two avenues exist for copyright protection of mugshots. First, law

enforcement agencies could commit to protecting mugshot images by enforcing

the copyright against online publishers themselves,

discussed more in Section

III(c) below.

Or, second, by transferring the copyright to the arrestee through

the copyright transfer mechanism provided by 17 U.S.C. § 201(d) for individual

enforcement. Transferring copyright ownership does not require compliance

Id. (referencing other requirements such as compliance with statutory requirements, point

of attachment of the work in the United States, and transfer rights, if applicable).

Id.

Id. § 7 (“The employer or other person for whom the work was prepared is considered the

author of a work made for hire.” (citing 17 U.S.C. § 201)); see also Jason Tashea, Use copyright

law to battle mugshot extortion, A.B.A J. (Mar. 27, 2018, 9:23 AM),

https://www.abajournal.com/lawscribbler/article/

use_copyright_law_to_battle_against_mugshot_extortion (“In the U.S., the default copyright

holder of a photo is the person or organization that took the photo, not the person in the

image. In the case of mugshots, this is most likely the law enforcement agency.”).

60 ELIZBETH WILLIAMS, CAUSES OF ACTION 553 § 8 (2d ed. 2013).

Id.

Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1077 (9th Cir. 2000); Burrow-Giles

Lithographic Co. v. Sarony, 111 U.S. 53, 55 (1884).

Tashea, supra note 84.

Id. (“Police departments around the country are in the unique position to serve and

protect . . . by using existing copyright law to support their community and fight back against

the mugshot racket.”).

Infra note 177.

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 125

with extensive formalities but requires a signed instrument of conveyance

showing the intent to transfer the copyright to another party.

III. A

NALYSIS

A. P

UBLIC MUGSHOT ACCESS THREATENS THE PRIVACY RIGHTS OF

ARRESTEES

Mugshots implicate serious privacy concerns because the photos contain a

private depiction of one’s person, irreparably associating the arrestee with

stigmatized criminality.

1. Privacy Interests in One’s Image.

While photographs taken in public places do not violate the right to privacy

even where no consent is given

, photographs taken in more intimate contexts

are subject to privacy constraints.

Protecting images of an individual taken

while that individual is in their home is supported by the idea that one’s

reasonable expectation of privacy is at its highest in the sanctity of their home.

Arguably, the guiding principle in determining whether a photograph violates

one’s expectation of privacy is the level of privacy associated with the location

and act being photographed.

Mugshots depict an inherently private thing: a

person’s face. Courts have long noted the inherent privacy of some depictions

of the human body. In a case where law enforcement disseminated images of an

assault victim’s body, the court remarked on the associated privacy concerns:

We cannot conceive of a more basic subject of privacy than

the naked body. The desire to shield one's unclothed figure

from view of strangers . . . is impelled by elementary self-

respect and personal dignity. . . . We do not see how it can be

argued that the searching of one's home deprives him of

20A1 BRENT A. OLSON, MINNESOTA PRACTICE SERIES TM § 15.19 (2021).

Phillip E. Hassman, Annotation, Taking Unauthorized Photographs as Invasion of Privacy, 86

A.L.R.3d 374 § 4 (1978).

See id. § 3(a) (identifying a home and hospital room as places where a reasonable

expectation of privacy has been upheld).

Katz v. United States, 389 U.S. 347 (1967).

See Photographers’ Guide to Privacy, REPS. COMM. FOR FREEDOM OF THE PRESS 2 (2007),

https://www.rcfp.org/wp-content/uploads/imported/PHOTOG.pdf (“[C]ourts constantly

redefine what is private based upon interpretations of the elusive legal standard of a

‘reasonable expectation of privacy.’”).

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

126 J. INTELL. PROP. L. [Vol. 30:2022]

privacy, but the photographing of one's nude body, and the

distribution of such photographs to strangers does not.

Similarly, in a case where a published article included an image of an injured child

lying on the ground following a car accident, the Third Circuit Court of Appeals

found that the “publication was an actionable invasion of plaintiff's right of

privacy” even though the photo was taken for news purposes.

Therefore, there

are indeed scenarios where photographing a person’s body implicates privacy

interests. The question becomes whether protection could be extended to

photographs taken of a person’s face during the criminal booking process.

Protecting the privacy of a person’s face is not a revolutionary concept. For

instance, the Illinois legislature has recognized privacy interests in one’s face

through the Illinois Biometric Information Privacy Act (“BIPA”).

BIPA seeks

to prevent the undisclosed retention of certain biometric identifiers, including a

“scan of hand or face geometry.”

100

Further, several Circuit Courts of Appeal

have expressly found that booking photos implicate privacy interests.

101

The

Tenth Circuit did so in World Publishing Co. v. U.S. Department of Justice, where

World Publishing sought six booking photos from the U.S. Marshals Service

(“UMS”).

102

UMS denied the request, citing an exception to the Freedom of

Information Act, which prevents disclosure of law enforcement materials that

could “constitute an unwarranted invasion of personal privacy . . . .”

103

In finding

UMS’s denial of the request lawful, the court remarked that “a mug shot's

stigmatizing effect can last well beyond the actual criminal proceedings . . . . A

mug shot preserves, in its unique and visually powerful way, the subject

individual's brush with the law for posterity.”

104

2. Privacy Interests in Criminal Record.

Whether criminal records should be subject to privacy protections is beyond

the scope of this Note. Even so, examining the reasoning for protecting criminal

records is helpful to determine if that same reasoning applies to mugshots.

York v. Story, 324 F.2d 450, 455 (9th Cir. 1963).

Leverton v. Curtis Pub. Co., 192 F.2d 974, 977 (3d Cir. 1951).

740 ILL. COMP. STAT. ANN. 14 (West 2022).

100

740 ILL. COMP. STAT. ANN. 14/10 (West 2022).

101

Karantsalis v. U.S. Dep't of Just., 635 F.3d 497 (11th Cir. 2011) (noting that booking

photographs implicate privacy rights).

102

World Pub. Co. v. U.S. Dep't of Just., 672 F.3d 825, 830, 832 (10th Cir. 2012).

103

Id. at 827 (quoting 5 U.S.C. § 552b(c)(7)).

104

Id. at 828 (citations omitted).

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 127

Just as a person should have a recognized privacy interest in a photograph

of their face, they should have a recognized privacy interest in their criminal

record, which is implied by the existence of a mugshot. To illustrate why this

proposition is true, it is helpful to look at other types of records that receive

privacy protections and examine whether there are functional differences

between these other records and criminal records.

For instance, medical records receive extensive privacy protection. The

Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) was

enacted to “protect sensitive patient health information from being disclosed

without the patient’s consent or knowledge.”

105

HIPAA intends to protect “the

privacy of people who seek care and healing” and ease “worries that sensitive

health information that could embarrass patients or leave them vulnerable to

discrimination would be too freely accessible.”

106

Criminal records similarly

contain information that could embarrass a person or leave them vulnerable to

discrimination: their involvement with the criminal legal system. This

embarrassment, or potential for discrimination, is due to the process of criminal

labeling and stigmatization.

107

Despite the potential for embarrassment and discrimination created by

access to criminal records, courts have not recognized a privacy interest against

disclosing criminal records,

108

even in cases where the record was expunged and

then disclosed.

109

For instance, the Tenth Circuit, who remarked in World

Publishing Co. on the stigmatizing effect of being associated with crime,

110

did not

recognize an expectation of privacy in expunged criminal records in a case which

post-dates World Publishing Co.

111

There, the court remarked that:

105

Health Insurance Portability and Accountability Act of 1996 (HIPAA), CDC, https://

www.cdc.gov/phlp/publications/topic/hipaa.html (last updated June 27, 2022); Health

Insurance Portability and Accountability Act, Pub. L. No. 104-191, § 264, 110 Stat. 1936

(1996).

106

Elizabeth Rosenthal, Medical Records: Top Secret, N.Y. TIMES (Nov. 8, 2014), https://

www.nytimes.com/2014/11/09/sunday-review/medical-records-top-secret.html; Summary of

the HIPAA Privacy Rule, HHS.

GOV, https://www.hhs.gov/hipaa/for-

professionals/privacy/laws-regulations/index.html (last visited Oct. 24, 2022).

107

Katerina Hadjimatheou, Criminal Labelling, Publicity, and Punishment, 35 L. & PHIL. 567, 567

(2016), https://link.springer.com/content/pdf/10.1007/s10982-016-9274-0.pdf.

108

See, e.g., Cline v. Rogers, 87 F.3d 176 (6th Cir. 1996) (“[T]here is no constitutional right to

privacy in one's criminal record. Nondisclosure of one's criminal record is not one of those

personal rights that is ‘fundamental’ or ‘implicit in the concept of ordered liberty.’” (quoting

Whalen v. Roe, 429 U.S. 589 (1977))).

109

Nunez v. Pachman, 578 F.3d 228, 233 (3d Cir. 2009) (rejecting the “contention that New

Jersey law itself creates a constitutional right of privacy in an expunged criminal record”).

110

World Pub. Co. v. U.S. Dep’t of Just., 672 F.3d 825, 827 (10th Cir. 2012).

111

Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995).

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

128 J. INTELL. PROP. L. [Vol. 30:2022]

Expectations of privacy are legitimate if the information which

the state possesses is highly personal or intimate. Information

readily available to the public is not protected by the

constitutional right to privacy. Consequently, government

disclosures of arrest records . . . do not implicate the right to

privacy. Furthermore, a validly enacted law places citizens on

notice that violations thereof do not fall within the realm of

privacy. Criminal activity is thus not protected by the right to

privacy.

112

This reasoning, however, is circular: information available to the public cannot

be protected by the right to privacy, yet the information is available to the public

in the first place because the information lacks privacy protection. Moreover, at

least in the Tenth Circuit, the reasoning behind denying FOIA requests for

mugshots is that the mugshot irreparably connects the depicted person to

crime,

113

while access to criminal records is upheld because the information is

not of “such a personal nature that it demands constitutional protection . . . .”

114

In sum, mugshots involve private information because (1) they depict an

inherently private feature, a face, and (2) because they associate a person with a

stigmatized criminal label.

B. T

HE VIABILITY OF LITIGATION FOR AGGRIEVED ARRESTEES: STATE

PRIVACY TORTS

Because mugshot photos implicate the privacy interests of arrestees, it is

worth determining whether any of the invasion of privacy causes of action

currently available are apt to address mugshot publication. All states recognize at

least one of the four Restatement right to privacy claims

115

—intrusion into

seclusion, misappropriation, publicity of private facts, and false light.

116

Several

states recognize all four of these privacy claims.

117

The following evaluation of

112

Id. (citing Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986)).

113

World Pub. Co., 672 F.3d at 829 (citing United States v. Romero-Rojo, 67 F. App’x 570,

572 (10th Cir. 2003)).

114

Nilson, 45 F.3d at 371 (finding no legitimate expectation of privacy in criminal records).

115

Photographers’ Guide to Privacy, supra note 96.

116

See RESTATEMENT (SECOND) OF TORTS § 652A (AM. L. INST. 1977) (identifying and

describing the four right to privacy claims).

117

See Photographers’ Guide to Privacy, supra note 96, at 2 (noting that, as of 2007, Alabama,

Georgia, California, and Connecticut, among other states, recognize all four privacy claims).

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 129

these four causes of actions and their applicability to a case where an arrestee

seeks to obtain redress against the publisher of their mugshot may leave that

arrestee with much to be desired from state privacy protection. First, identifying

a defendant may prove challenging since the people publicizing the mugshots are

“often sham entities and challenging to track down . . . .”

118

Further, these actions

require significant financial resources, and those seeking redress are often “the

most disenfranchised in our society.”

119

1. Intrusion Upon Seclusion

While state law claims of invasion of privacy based on intrusion upon

seclusion may include varying elements, the claims generally ascribe to the

requirements outlined by the Restatement (Second) of Torts § 652(B).

120

Thus,

for argument’s sake, the elements of invasion of privacy based on an intrusion

upon seclusion can be assumed to follow Restatement § 652(B). These elements

include intentional intrusion, which would be “highly offensive to a reasonable

person[,]” “physical or otherwise, upon the solitude or seclusion of another or

[their] private affairs or concerns.”

121

One example illustration in the Restatement of intrusion upon seclusion is

a hypothetical scenario where a woman is sick in the hospital, and a newspaper

reporter enters her hospital room and, over the woman’s objection, photographs

her.

122

While the illustration includes a newspaper reporter as the invader of

privacy, invasion by intrusion upon seclusion does not require any publicity of

the private information.

123

Further, while this illustration includes a physical

intrusion into a woman’s hospital room, a physical intrusion is not necessary to

claim intrusion upon seclusion per the Restatement approach.

124

Courts,

however, generally interpret the intrusion upon seclusion as “an extension of the

118

Lee, supra note 10, at 613.

119

Id. at 614.

120

Compare Peterson v. Aaron's, Inc., No. 1:14-CV-1919-TWT, 2017 WL 4390260, at *4

(N.D. Ga. Oct. 3, 2017) (citing the Restatement’s elements of intrusion upon seclusion), with

Prather v. Bank of Am., N.A., No. CV 15-163-M-DLC, 2017 WL 1929474, at *3 (D. Mont.

May 9, 2017) (citing Montana’s common law elements of intrusion upon seclusion including

subjective expectation of seclusion and objective expectation of seclusion while still

following the Restatement approach).

121

RESTATEMENT (SECOND) OF TORTS § 652B (AM. L. INST. 1977).

122

Id. cmt. b, illus. 1

123

See id. cmt. a (“The form of invasion of privacy covered by this Section does not depend

upon any publicity given to the person whose interest is invaded or to [their] affairs.”).

124

Id. cmt. b.

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

130 J. INTELL. PROP. L. [Vol. 30:2022]

tort of trespass.”

125

In fact, some jurisdictions require a physical trespass to state

such a claim.

126

Thus, intrusion can be characterized as a trespass to a private

“safe zone or ‘private realm’ where individuals can be free from the unwanted

intrusions of others.”

127

Under this characterization, it does not appear that intrusion upon seclusion

is an appropriate cause of action for an arrestee seeking suit against the publisher

of a mugshot photo. Intrusion claims seem to rely heavily on an invasion into a

private space rather than a private fact, such as an association with the criminal

legal system.

128

Mugshot photos are not taken in private but rather taken by law

enforcement in a public facility. Thus, it would be difficult to argue that they

should be protected like photos taken while someone is in their private hospital

room should be. Plaintiffs have nonetheless made unsuccessful attempts to

frame claims of dissemination of mugshot photos as intrusions upon

seclusion.

129

In one such case, a New Jersey District Court rejected that framing:

[T]he disclosure of a mug shot itself does not reveal any

information that was not already public. A mug shot merely

provides a visual of someone with pending charges, and

Plaintiff does not allege that his pending charges were

nonpublic. Second, a mug shot is not based in text. Its

disclosure, without anything more, is less likely to facilitate

false or inaccurate reporting about the defendant or his

pending charges. Third, a mug shot is not the type of “highly

personal matter[] representing the most intimate aspects of

human affairs” that historically has been protected by the

Fourteenth Amendment.

130

The second of these reasons is generally unobjectionable: it cannot be

argued that a mugshot is text. Regarding the first, however, it can be argued that

minimizing the dissemination of a mugshot as “merely provid[ing] a visual”

125

Eli A. Meltz, Note, No Harm, No Foul? “Attempted” Invasion of Privacy and the Tort of Intrusion

Upon Seclusion, 83 F

ORDHAM L. REV. 3431, 3452 (2015).

126

See id. (“[S]ome jurisdictions only recognize a cause of action for intrusion upon seclusion

if there has been some physical invasion.”).

127

Id. at 3453.

128

Id.

129

See Tramaglini v. Martin, No. CV 19-11915, 2019 WL 4254467, at *6 (D.N.J. Sept. 9,

2019) (finding constitutional privacy interests are not implicated by mugshot dissemination).

130

Id.

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 131

neglects the privacy interest in the image itself.

131

Further, regarding the third

reason articulated by the district court, association with the criminal legal system

could be a “highly personal matter[] representing” an intimate aspect of an

arrestee’s life.

132

Contrarily, an association with crime cannot be a solely personal

matter given a potential legitimate news interest.

133

Indeed, if this were the true

motivation of those who publicize mugshots, then such an argument would have

merit. This does not appear to be the case.

134

In sum, the only way an aggrieved

arrestee could make a colorable claim of intrusion upon seclusion is if a court

were to recognize the personal and intimate nature of mugshots while also

evaluating the validity of publishers’ claims of newsworthiness.

2. Misappropriation and the Right of Publicity

While misappropriation of one’s name or likeness, a privacy right, and an

invasion of the right of publicity are not the same cause of action,

135

there is

significant overlap between elements of the two claims.

136

They differ in that the

right of publicity claim requires a “celebrity’s commercial interest” while a

misappropriation claim can be pled without such celebrity status.

137

Thus, an

arrestee seeking mugshot removal who happens to have celebrity status could

rely on a right of publicity claim while “common folk” could rely on a

misappropriation of one’s likeness claim.

138

Beyond that distinction, the claims

can be discussed together regarding what is necessary to state a colorable claim.

The Restatement(Second) of Torts § 652C states that, in order to claim

misappropriation, a plaintiff must allege that the defendant used or benefited

131

Id. at *6; supra note 92 and accompanying text.

132

Tramaglini, 2019 WL 4254467, at *6.

133

Lee, supra note 10, at 561 (“On the other hand, free speech advocates, media outlets, and

victims' rights organizations urge for open access to these records, arguing that the public

has the right to know about arrests. They argue that the images are newsworthy.”).

134

Olivia Solon, Haunted by a mugshot: how predatory websites exploit the shame of arrest, GUARDIAN

(June 12, 2018), https://www.theguardian.com/technology/2018/jun/12/mugshot-

exploitation-websites-arrests-shame (“[T]his shift to the internet transformed mugshots of

ordinary from citizens from ‘public records that generally fell into “practical obscurity”’ into

‘commodities posted for entertainment and commercial gain.’”).

135

Kathryn Riley, Misappropriation of Name or Likeness Versus Invasion of Right of Publicity, 12 J.

CONTEMP. LEGAL ISSUES 587, 587 (2001) (“Although easily confused, the torts

‘misappropriation of name or likeness’ and ‘invasion of right of publicity’ are not the

same.”).

136

Id. at 588 (“Both claims require proof of these elements: (1) defendant appropriated

plaintiff's name, likeness, or personality; (2) the appropriation was without the plaintiff's

consent; and (3) the appropriation was to the defendant's advantage.”).

137

Id.

138

Id. at 589.

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

132 J. INTELL. PROP. L. [Vol. 30:2022]

from the use of the plaintiff’s name or likeness.

139

This seems to be a promising

candidate for an arrestee to employ since “[t]he common form of invasion of

privacy under the rule here stated is the appropriation and use of the plaintiff's

name or likeness . . . for some similar commercial purpose”

140

and much of the

objectionable mugshot publication occurs on websites obtaining a commercial

gain from the mugshot publication. In the cases where the publication is not for

commercial purposes but instead for shaming purposes, a misappropriation

action may still be available since “the rule stated is not limited to commercial

appropriation.”

141

One could argue that posting the mugshot benefits the

mugshot poster or publisher, and this benefit could be merely monetary, for

news reporting purposes, or entertainment.

Plaintiffs have had more success under this privacy right than with intrusion

upon seclusion.

142

In Gabiola v. Sarid, the plaintiffs, both previously arrested,

alleged that the owner of several mugshot publication websites, including

Mugshots.com and Unpublisharrest.com, violated, among other things, their

right of publicity.

143

The court remarked that “[a]s pleaded, the factual allegations

support an inference that everything, including the articles on the

Mugshots.com[,] are click-bait to increase consumers and to embarrass the

profiled arrestees and in turn to drive revenue to the removal service.”

144

This

amounts to a monetary benefit to the owner of the websites, a requirement for

misappropriation or right of publicity claims.

3. Publicity of Private Facts

To plead a legitimate claim for invasion of privacy by public disclosure of

private facts, one must allege that the public disclosure of a private fact is not of

legitimate public concern and is offensive and objectionable to a reasonable

person.

145

Thus, an aggrieved arrestee must argue that the fact of their arrest is

private, that the fact of the arrest is not of legitimate public concern, and that the

publication is offensive and objectionable to a reasonable person.

139

See RESTATEMENT (SECOND) OF TORTS § 652C (AM. L. INST. 1977) (“One who

appropriates to his own use or benefit the name or likeness of another is subject to liability

to the other for invasion of his privacy.”).

140

Id. cmt. b.

141

Id.

142

See, e.g., Bilotta v. Citizens Info. Assocs., LLC, No. 8:13-CV-2811-T-30TGW, 2014 WL

105177, at *2 (M.D. Fla. Jan. 10, 2014) (finding that the plaintiff adequately stated a claim

under Fla. Stat. § 540.08 for misappropriation against mugshot website).

143

Gabiola v. Sarid, No. 16-CV-02076, 2017 WL 4264000, at *1 (N.D. Ill. Sept. 26, 2017).

144

Id. at *6.

145

103 AM. JUR. 3D Proof of Facts § 2 (2008).

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 133

All jurisdictions that recognize this form of invasion of privacy agree that

publicity given to already public facts is not an invasion of privacy.

146

Thus, the

success of establishing that a mugshot is private depends upon whether or not

the arrestee’s jurisdiction permits public access to mugshots. For instance,

Georgia passed a law in 2014 which limits the public disclosure of booking

photographs to narrow circumstances,

147

thereby limiting the public’s access to

the images. Similarly, in 2019, New York prohibited the public disclosure of

mugshots unless the disclosure serves a valid law enforcement purpose.

148

Even

so, “most nonfederal law enforcement agencies freely disclose mug shots to the

public.”

149

Therefore, in many jurisdictions, public access to the mugshot would

be preclusive of a suit for invasion of privacy via public disclosure of private

facts.

150

Advocates of open disclosure of records, like mugshots, “stress the

importance of government transparency, open access to public records, and the

oversight function of the press in monitoring the police and the government.”

151

Mugshot publication websites themselves urge that their sites advance public

safety.

152

The banner on Mugshots.com boasts that it is a “news organization”

informing the public on crime.

153

Courts generally treat “matters of public

concern” as a broad category,

154

but there are few bright-line state rules on

whether or not mugshots are a matter of legitimate public concern.

155

Finally, if a plaintiff were to succeed in establishing that the fact of their

mugshot is private and that their mugshot does not involve a legitimate public

concern, the plaintiff would have to establish that the publication was offensive

to a reasonable person. Again, little exists by way of bright-line rules in this aspect

of state privacy law. Plaintiffs have had success pleading this element where the

146

123 AM. JUR. Trials § 17 (2012).

147

GA. CODE ANN. § 50-18-72(a)(4) (West 2022).

148

Mug Shots and Booking Photo Websites, NCSL (Aug. 8, 2022),

https://www.ncsl.org/research/telecommunications-and-information-technology/mug-

shots-and-booking-photo-websites.aspx.

149

Cameron T. Norris, Note, Your Right to Look Like an Ugly Criminal: Resolving the Circuit Split

over Mug Shots and the Freedom of Information Act, 66 V

AND. L. REV. 1573, 1589 (2013).

150

Id.

151

Lee, supra note 10, at 576.

152

Id. at 575.

153

MUGSHOTS.COM, https://mugshots.com/ (last visited Nov. 28, 2021).

154

123 AM. JUR. Trials § 20 (2012).

155

Publication of Private Facts, DIGIT. MEDIA L. PROJECT (Sept. 10, 2022),

https://www.dmlp.org/legal-guide/publication-private-facts (last visited Nov. 28, 2021).

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

134 J. INTELL. PROP. L. [Vol. 30:2022]

content published involved an intimate act, however.

156

Although, plaintiffs have

failed in pleading this element where the content published contained a photo of

a couple kissing or a private wedding.

157

While mugshots arguably depict private

content, one could find that a booking photo is analogous to a photo of a private

wedding or couple kissing rather than that of a woman nursing a child or posing

nude.

4. False Light

The final invasion of privacy right to evaluate for its applicability to an

aggrieved arrestee is the false light invasion of privacy. This requires that a

defendant, with malicious intent, publicize a highly offensive, inaccurate

representation with knowledge of the representation’s falsity.

158

Although case law where an arrestee pleads false light invasion of privacy

against a mugshot publisher is minimal, the available court opinions suggest the

claim is viable.

159

In Taha v. Bucks County, for example, an arrestee sought redress

after his mugshot was posted on the county’s website and subsequently posted

on other online mugshot websites along with his arrest information.

160

The

defendant-mugshot website moved to dismiss the claims of false light invasion

of privacy because the plaintiff’s arrest was not false.

161

In fact, the plaintiff

pleaded guilty to the charges associated with the mugshot.

162

Nevertheless, the

court agreed with the plaintiff, noting “[i]t is plausible that [the website’s] design

creates the impression that [the plaintiff] is a ‘criminal’—at the very least, that he

is guilty, that he has done something wrong, [and] that his conduct warrants

monitoring in future.”

163

This decision represents recognition by a court that it

can be true that an individual is arrested and still be false to portray them as a

criminal or worthy of monitoring.

C. THE VIABILITY OF LITIGATION FOR AGGRIEVED ARRESTEES: COPYRIGHT

INFRINGEMENT

156

Id. (noting that “publishing a photograph of a woman nursing a child or posing nude in a

bathtub” has been found to be offensive to a reasonable person).

157

Id.

158

33 RICHARD E. KAYE, CAUSES OF ACTION 1 § 4 (2d ed. 2007).

159

Taha v. Bucks Cty., 9 F. Supp. 3d 490 (E.D. Pa. 2014).

160

Id. at 494.

161

Id.

162

Id.

163

Id.

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 135

In the absence of a perfectly suited state law invasion of privacy claim and

fully effective state legislation, an arrestee seeking redress for mugshot

publication may seek other avenues of protection. Copyright law, designed to

promote progress in arts and sciences

164

, has been suggested as a potential

remedy.

165

166

this body of law offers a more universally applicable remedy to arrestees in the

United States seeking redress than, for instance, state privacy law, which varies

significantly among states.

167

For a plaintiff to allege copyright infringement of a mugshot, for example,

there must be valid copyright ownership over the image.

168

The initial owner of

a mugshot is not the person depicted in the image but the law enforcement

agency who took the photo.

169

Ownership of a mugshot depends on whether the

mugshot was taken by a federal law enforcement agency or a state law

enforcement agency because the federal government cannot own copyrights.

170

Further, a state’s ability to own copyrights is murky: the Supreme Court recently

held that a state’s statute annotations are ineligible for copyright protection,

171

but the U.S. Copyright Office only prohibits copyrights of “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.”

172

In other words, the Supreme Court

and Copyright Office prohibit a state from copyrighting its laws but do not

foreclose state copyright ownership outright. Thus, a state or local law

enforcement agency that takes a mugshot photo could validly own the copyright

of that photo initially.

164

U.S. CONST. art. I, § 8, cl. 8; Purpose of Copyright Law, S. ILL. UNIV.: CARBONDALE,

https://lib.siu.edu/copyright/module-01/purpose-of-copyright-law.php (last updated Sept.

7, 2022).

165

Tashea, supra note 84.

166

U.S. Dep’t of Just., Crim. Res. Manual § 1844 (2020).

167

See Photographers’ Guide to Privacy, supra note 96, at 5 (identifying differences among states

regarding state privacy laws).

168

169

See Tashea, supra note 84 (“In the U.S., the default copyright holder of a photo is the

person or organization that took the photo, not the person in the image.”).

170

Id.; Are Works By The U.S. Government Protected By Copyright?, COPYRIGHT ALL.,

https://copyrightalliance.org/faqs/copyright-us-government-works/ (last visited Nov. 28,

2021).

171

Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020).

172

Adam Garson, Can State Governments Own Rights in Copyright?, LIPTON, WEINBERGER &

HUSICK: L. BLOG (May 12, 2017) (citations omitted), https://garson-law.com/can-state-

governments-own-rights-in-copyright/.

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

136 J. INTELL. PROP. L. [Vol. 30:2022]

Mugshots taken by federal law enforcement may enter limbo in terms of

while mugshots taken by a state or local agency may be owned by law

enforcement.

173

Therefore, one might think that individuals arrested by federal

agencies are out of luck in protecting their mugshot in the method described

below, predicated on initial copyright ownership by the law enforcement who

takes the mugshot photo.

174

Federal mugshots, however, are not subject to

public disclosure in the same way state mugshots can be,

175

so an individual

arrested by federal law enforcement faces virtually no risk of their mugshot being

published.

There are two paths to mugshot protection with copyright law. First, the

state or local law enforcement agency that initially owns a mugshot photo can

publish the mugshot. Second, the state or local law enforcement agency that

captures the mugshot photo can register the copyright and then transfer

ownership of the copyright to the individual in the mugshot. That individual may

then pursue a copyright infringement action against those who publish the

photo.

176

Both paths notably imply that state law enforcement is incentivized or

willing to protect the individual from unauthorized mugshot publication. Some

state agencies have proven they are willing to take measures against online abuse

through mugshot posting.

177

The Department of Public Safety in Newark, New

Jersey announced on Facebook that it would no longer “post mugshots or other

photos of individuals arrested for minor offenses as part of an effort to safeguard

individuals from marginalized communities from abuse.”

178

The police

department in San Francisco expressed a similar sentiment when it banned the

release of mugshots, noting that mugshot release “creates an illusory correlation

for viewers that fosters racial bias and vastly overstates the propensity of Black

173

Tashea, supra note 84.

174

See id. (describing initial copyright ownership for the federal government).

175

Josh Gerstein, Court ends routine access to federal mugshots, POLITICO (July 14, 2016, 2:42 PM),

https://www.politico.com/blogs/under-the-radar/2016/07/mugshots-federal-criminal-

suspects-225546.

176

Tashea, supra note 84.

177

See Newark NJ Department of Public Safety, FACEBOOK (Oct. 18, 2021),

https://www.facebook.com/photo.php?fbid=251899520297515&set=a.238608488293285&

type=3 (announcing a new policy for the release of mugshots).

178

Id.

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 137

and brown men to engage in criminal behavior . . . .”

179

These two instances may

not be indicative of all state agencies’ attitudes, but they at least symbolize a

sympathy for the plight of individuals associated with the criminal justice system

in terms of their relationship with the rest of the community.

D. B

ALANCING THE NEED FOR MUGSHOTS AGAINST PRIVACY INTERESTS:

ARE MUGSHOTS OBSOLETE?

While some of the previous bodies of law may be a promising route for

aggrieved arrestees to take to obtain redress for their mugshot publication, many

hurdles exist. In the state privacy law context, arrestees are stuck with the set of

invasion of privacy causes of action that their state recognizes, some of which

do not apply to their claims. Arrestees could rely on state legislation designed to

regulate mugshot publication, but in the majority of states, mugshots remain

open to disclosure.

180

In the copyright infringement context, success is highly dependent on the

willingness of state and local law enforcement to dedicate resources to registering

copyrights and either enforcing or transferring those rights. If it is questionable

whether there is an adequate remedy at law for unauthorized mugshot

publication, one wonders if this problem could be solved by the elimination of

the practice of taking booking photographs entirely. If the purported purpose of

taking mugshots is to aid in identifying a person, which it originally was,

181

are

there not other available methods of identification that do not threaten an

individual’s reputation? Fingerprinting, for example, is already a widely practiced

method of identification.

182

Contrary to this position, some urge that mugshots are a “key part of the

administrative process for law enforcement agencies and are unlikely to go

179

Keri Blakinger, Mugshots stay online forever. some say the police should stop making them public,

NBC

NEWS (Nov. 11, 2021, 10:36 AM), https://www.nbcnews.com/news/us-

news/mugshots-police-public-online-rcna4897.

180

Lee, supra note 10, at 593.

181

Collin Hardee, Mugshots & the Degradation of the Presumption of Innocence, CAMPBELL L.

OBSERVER (Feb. 26, 2021), http://campbelllawobserver.com/mugshots-the-degradation-of-

the-presumption-of-innocence/.

182

Daniel Engber, Does the FBI Have Your Fingerprints?, SLATE (Apr. 22, 2005, 6:38 PM),

https://slate.com/news-and-politics/2005/04/does-the-fbi-have-your-

fingerprints.html#:~:text=Local%20and%20federal%20law%20enforcement,there%20is%2

0an%20eventual%20conviction (“Local and federal law enforcement officers typically

submit fingerprints to the FBI’s criminal file for every person they arrest on a serious charge,

whether or not there is an eventual conviction.”).

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4

138 J. INTELL. PROP. L. [Vol. 30:2022]

away.”

183

They cite how the purpose of mugshots, originally rooted in

identification, has transformed to include aiding in crime investigation itself by

encouraging other victims to come forward and deter crime generally.

184

These benefits, apparently minimal by empirical study,

185

must be weighed

against the harm that mugshot circulation has on the individuals depicted in the

photo. Take Keri Blakinger, for example. She is a journalist with NBC News who

was arrested in 2010 on drug charges.

186

She has been sober since but can still

find her mugshot online with a Google search of her name.

187

She describes it as

the worst picture she had ever seen of herself and representative of a time in her

life riddled with addiction.

188

The online presence of her mugshot is the “digital

ball and chain linking [her] to a past life.”

189

Blakinger counts herself lucky that

she was able to turn her life around and obtain employment with major media

outlets,

190

but so many others like her are not able to shake the stigma of their

past association with the criminal system.

191

IV. CONCLUSION

Mugshot images are more than an administrative tool for law enforcement.

When available to the public, the depicted arrestee is subject to digital shaming

and a permanent scar on their reputation. State privacy law, aimed at protecting

the privacy interests of constituents, is generally ill-suited to cure the

unauthorized posting of mugshots: many privacy torts are inapplicable to this

claim, and the ones that may be applicable are not available in all jurisdictions.

State legislation aimed at combatting mugshot publication that does not exempt

183

Hardee, supra note 181.

184

Blakinger, supra note 179.

185

See generally Dara N. Lee, The Digital Scarlet Letter: The Effect of Online Criminal Records on

Crime 19 (May 2011),

https://billslater.com/legal/00_Cyberstalking/2011_TheDigitalScarletLetterTheEffectO_pr

eview.pdf (“[I]f the publishing of criminal background information online impedes ex-felons

from finding legitimate employment, or cause them to suffer a wage discount, the benefits of

repeat criminal behavior could outweigh the costs.”).

186

Blakinger, supra note 179.

187

Id.

188

Id.

189

Id.

190

Id.

191

Lee, supra note 185, at 1 (noting that increased availability of criminal record information

can “obstruct ex-convicts from finding legal employment and lead to higher recidivism

rates”).

Cheek: Regulating Online Mugshot Publication

Published by Digital Commons @ University of Georgia School of Law, 2022

REGULATING ONLINE MUGSHOT PUBLICATION 139

mugshots from open record requests, like that of Georgia, are band-aids on

bullet wounds.

Since this body of law is exclusively federal, aggrieved arrestees everywhere in

the country would have access to an infringement claim. Even so, this solution

is predicated on either (1) the willingness of state and local law enforcement to

engage with mugshot protection by way of enforcing copyrights or transferring

them for enforcement by individuals or (2) state legislation requiring law

enforcement to enforce or transfer for individual enforcement. While this offers

hope for civil redress to arrestees, it begs the question of whether this need for

redress should be a reality. If a process like the taking of booking photographs is

so harmful to the public, law enforcement should be required to adapt and adopt

new, less harmful methods to achieve the goals that mugshots serve.

Journal of Intellectual Property Law, Vol. 30, Iss. 1 [2022], Art. 4

https://digitalcommons.law.uga.edu/jipl/vol30/iss1/4