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

• Publication year: 2022

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

Amanda Cheek
University of Georgia, jwt74222@uga.edu

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

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

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Cheek: Regulating Online Mugshot Publication

INNOCENT UNTIL PROVEN POSTED: REGULATING ONLINE MUGSHOT PUBLICATION WITH INTELLECTUAL PROPERTY LAW

Amanda Cheek^*

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TABLE OF CONTENTS

I. INTRODUCTION............................................................................................114

II. BACKGROUND..............................................................................................116

A. A HISTORY OF MUGSHOTS: LABELING IMAGES "CRIMINAL" .... 116
B. MUGSHOTS AS A DEVICE OF PUBLIC SHAMING............................118
C. RIGHT TO PRIVACY.............................................................................119

1. Historical Basis for Right to Privacy.........................................119
2. Modern Privacy Rights................................................................120

D. THE RIGHT OF PUBLICITY.................................................................122
E. COPYRIGHT INFRINGEMENT............................................................123

III. ANALYSIS.......................................................................................................125

A. PUBLIC 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. THE 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. THE VIABILITY OF LITIGATION FOR AGGRIEVED ARRESTEES : COPYRIGHT INFRINGEMENT............................................................134
D. BALANCING THE NEED FOR MUGSHOTS AGAINST PRIVACY INTERESTS: ARE MUGSHOTS OBSOLETE?..........................127

IV. CONCLUSION.....................................................................................................138

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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.¹ The online space is also information rich. An amateur researcher can uncover various features of a person's life simply by knowing their name.² 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.³ They are available upon request, frequently along with information about the arrest, including "the person's name, arrest date, and birth date."⁴

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

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websites, such as arrests.org,⁵ mugshots.com,⁶ or BustedNewspaper.com.⁷ 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.⁸ Not every person depicted in a mugshot, however, has discretionary money to pay the often-hefty fees for removal.⁹

By following popular investigative journalism reports on the commercial mugshot publication, analogizing the practices to extortion, the mugshot industry garnered skeptical attention.¹⁰ 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.¹¹ These legislative strategies have questionable constitutional implications under First Amendment jurisprudence and require a significant showing from an aggrieved arrestee.¹² A subset of intellectual property doctrines may be apt to remedy what state legislation cannot. Right of publicity, right to privacy, and copyright claims all have the same goals as those who seek to maintain control 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.

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II. BACKGROUND

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.¹³ 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,¹⁴ a practice now completely discredited as junk science.¹⁵ 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.¹⁶ 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.¹⁷ 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.¹⁸ 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.¹⁹

The modern mugshot form was developed by French anthropologist Alphonse Bertillon, who developed a photography style to aid law enforcement's

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detection of recidivists.²⁰ Bertillon would photograph subjects twice, once head-on and once in profile.²¹ 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.²² 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.²³

The rise of the digital age and the invention of the internet drastically transformed mugshot use.²⁴ The images, once temporarily displayed in a gallery or newspaper that would soon be discarded, can now live indefinitely online.²⁵ Websites with mugshots as their sole content began to emerge around 2011.²⁶ 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.²⁷

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.²⁸ 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.²⁹

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B. MUGSHOTS AS A DEVICE OF PUBLIC SHAMING

The public attaches a highly stigmatized label of...