Who Owns Police "Mug Shots"?

Unless you are John Gotti or Robert Downey, Jr., if you have ever been arrested and had your police "mugshot" taken during routine booking procedures, you may find yourself staying up at night worrying about where that mugshot may someday end up. 

Depending on your level of notoriety, websites such as MugShots.com and TheSmokingGun.com are giving some people good reason to worry about just that.

MugShots.com calls itself a “search engine for Official Law Enforcement records, specifically booking photographs." While TheSmokingGun.com focuses on historical and "high profile" figures, some websites have been accused of "extortion" and "blackmail" for publishing mugshots of wholly private individuals who were -- at some point in their lives -- accused of crimes ranging from disorderly conduct to armed robbery.  Some of these sites will offer to remove your mugshot, for a fee of course.

Putting aside the thorny privacy issues involved, an intellectual property question has been raised:  "Are these mugshots in the public domain?"

The answer from an intellectual property practitioner's perspective is that mug shots are not necessarily in the public domain, and third party websites do not possess an automatic exemption from infringing otherwise validly owned federal copyrights.

According to the MugShots.com website, "originally collected and distributed by Law Enforcement agencies, Booking records are considered and legally recognized as public records, in the public domain." That site claims that it "republishes these Official Records in their original form ("as is") under the First Amendment to the United States Constitution, the freedom to publish true and factual information. Our intent is to provide a legitimate and useful service for both the private and public sectors."

MugShots.com goes on to say that "all information on the mugshot pages on Mugshots.com was originated [sic] with law enforcement agencies.  We publish the information "as is" and do not edit it."

There are several serious flaws with these legal arguments.

After 1976, the Copyright Act provided that copyright attaches automatically upon the creation of an original work that is fixed in a tangible medium of expression. After 1976, copyright protection is automatic and vests instantly in the photographer.

Therefore, after 1976, when a police officer or civilian photographer stood behind a camera and snapped a mugshot, it is that photographer who technically owned the copyright in the image the very instant it was created in tangible form.  Before that, much stricter copyright notice requirements applied, forcing many photographs published without notice into the public domain.

Elvis Presley in a 1956 mugshot/
Wikimedia Commons / Public Domain

If the photographer was an employee of the U.S. federal government, then the legal analysis ends.  The U.S. federal government has openly disclaimed any and all copyright ownership in its documents, including mugshots.  Therefore, such mugshots, once released, are freely in the public domain for copyright purposes, and can be reproduced, altered or used in any form without violating federal copyright laws.  (It is worth noting that a federal appeals court recently ruled that there is no Freedom of Information Act obligation for the feds to release mugshots).

However, thousands of the mugshots that appear on these sites appear to have been taken by photographers that were employed by state and local police and sheriff’s departments, and who took the photographs in the course of their duties.

In those cases, the individual photographers who took the mugshots presumably entered into an employment agreement assigning ownership of the photographic work product to their employers.  So whatever copyright inhered in the mugshots when they were first taken by the photographer would be assigned to the police department or municipality.

Further, each local municipality and police department has its own laws, policies, regulations dictating who now owns copyrights to the mugshots, and who can use or distribute them, and for what purpose.

Some local jurisdictions take the approach that mugshots are valuable to law enforcement only during ongoing investigations, and restrict access to them until the case is resolved.  Others take a more open approach similar to the federal government, and waive any copyrights they might otherwise have owned in these images, regardless of how they are subsequently used or exploited.  Others go even farther, and encourage the public viewing of these images as a deterrent.

So, if a local police department has not otherwise waived its copyrights to the mugshots, as a technical matter, for a website to display, reproduce them or alter them for commercial gain would likely constitute a prima facie case of copyright infringement.

Indeed, it is worth noting that such a site would arguably infringe upon every single aspect of the copyright statute – the right to display, reproduce and even modify/alter the images. For example, despite its own claim that the images are reproduced verbatim from government files, it appears that every single mugshot on MugShots.com contains an embedded watermark, which was obviously added later.  Such conduct could violate the federally-recognized copyrights of local police departments which have not otherwise disclaimed their copyrights in and to control how these images are altered or used to create derivative works.

What about Fair Use?

Fair use is a defense to infringement, not an automatic exemption.  Indeed, the Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.  This means that, in litigation involving allegations of copyright infringement, the defendant squarely bears the burden of raising and proving that his use was "fair" and not an unauthorized infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement.  If the work was not copyrightable, if the term had expired, or the defendant's work borrowed only a very small amount, for instance, then the plaintiff cannot even make out a prima facie case of infringement, and the defendant need not even raise a fair use defense. However, as discussed above, a prima facie case of copyright infringement could theoretically be asserted by a municipality or police department that had not otherwise waived its copyright to control the commercial exploitation of these images.  Whether or not such a case will ever be filed is currently unknown.

Unfortunately, for those arrested for disorderly conduct outside a bar twenty years ago, and who were mortified to discover their faces displayed on a commercial website and want to demand legal action under intellectual property laws, you will have to wait.  Under current federal copyright law, you probably don't have standing to sue on behalf of the copyright holders.