Why is Trump able to profit off his crimes by selling his mugshot?!

This appears to violate US Copyright Law

Donald Trump's Save America fundraising committee is selling "NEVER SURRENDER!" Trump mugshot t-shirts ($34.00), beverage holders ($15.00 for two) and coffee mugs ($25.00).  Then there is the Trump campaign’s sale of a signed poster ($28), a beer cozy ($15), and bumper stickers ($12)—all bearing his mugshot. You name it, and Trump is selling it with his mugshot taken by the Fulton County Sheriff.  While we don’t know exactly how much he has raised from these sales, Politico reports Trump raised nearly $7 million in the days after he was booked in the Fulton County prison.

That prompted many listeners to my SiriusXM radio show to raise the issue: How is Trump permitted to sell his mugshot taken by the Fulton County Sheriff’s office for a profit?  They were angered—like I am-that Trump is profiting from his criminal conduct.

But what they were asking from a legal point of view is: Who owns the copyright to the mugshot? Under US copyright law, the copyright owner possess an exclusive “bundle of rights” to reproduce, distribute and profit from the work.

When I posted the issue online, there were a lot of people opining that a mug shot is in the “public domain” or that since Trump is the one in the photo, he owns the copyright. From a legal point of view, they are wrong—at least when it comes to mugshots in state court.

As a general principle, the person (or entity) taking the photo—not the subject—is the owner of the copyright.  As a recent law review article by the University of Georgia law school explains: “In the context of photographs taken by law enforcement during the booking process, the author of the mugshot photograph is the law enforcement agency.”

And Betsy Rosenblatt, a professor at Case Western Reserve University’s School of Law, explained in a recent interview that there is copyright ownership of mugshots in most jurisdictions. She added that the owner of the copyright of Trump’s mugshot is likely the Fulton County Sheriff's Department.  (In federal cases, the US government is not permitted to own the copyright to booking photos so they are considered in the public domain by way of 17 USC Section 105.) 

Well, I wanted to find out if Fulton County did in fact own the copyright and if so, did they give Trump permission to reproduce it for profit? I emailed them those questions. But alas, no response. (I imagine they are a little busy!)

Now before you think asking who owns the copyright to the mugshot is petty, keep in mind the Trump campaign is openly threatening to sue anyone who uses Trump’s mugshot on products they are selling! Chris LaCivita, one of Trump’s top advisers, so wanted to make sure that no one else would profit from this money-making scheme that he issued a warning on X (formerly Twitter.) This threat reads: “If you are a campaign, PAC, scammer and you try raising money off the mugshot of @realDonaldTrump and you have not received prior permission …WE ARE COMING AFTER YOU, You will NOT SCAM DONORS.”

You get it: only Trump can scam donors!!

Now there is an actual claim Trump has as the subject of the photo known as the “right of publicity.” But that has nothing to do with the copyright ownership. If you are famous, your image has a value. But still that doesn’t mean you can use a copyrighted work without permission.

Assuming Fulton County does own the copyright—which appears to be the case—are there exceptions to the US copyright law that Trump could use? The best-known exception to federal copyright law is known as “Fair Use.” That allows people to use a copyrighted work without needing the permission of the copyright holder. A common scenario is when something is newsworthy—such as a news outlet showing a copyrighted work on air without permission.

The four-prong test to determine if Fair Use applies is this:

• The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

• The nature of the copyrighted work;

• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

• The effect of the use upon the potential market for or value of the copyrighted work.

Well in the very first prong of the test, a key element is whether the use is for profit. If it is for profit, then very unlikely Fair Use applies. And in the case of Trump--who has slapped the mugshot on any and everything--there is no way Fair Use applies.

The penalties for violating the Copyright Act of 1976 are laid out in the law and are very severe. Money damages in a copyright infringement action can include: (1) actual damages, (2) profits of the infringer, or (3) statutory damages. The concept is clear: the infringer should not be allowed to keep the benefit of their wrongful actions.

Of course, now comes the practical question. As Professor Rosenblatt noted:  “Whether the Fulton County Sheriff's Department would decide to enforce its copyright is entirely up to them.”

Assuming Fulton County does in fact own the copyright and did not give Trump permission, they should sue him. This would be consistent with Fulton County DA Fani Willis’ philosophy that “no one is above the law.” This would also be consistent with preventing criminals from profiting off their crimes. 

In a nutshell, when bad people commit crimes and benefit financially, law enforcement officers can seize the money and property involved in these “ill-gotten gains” and use these proceeds to benefit society. For example. if the Fulton County Sheriff does sue and can recover millions from Trump, the funds could be used to help address the Fulton County prison overcrowding situation.

The reality is that regardless if Fulton County Sheriff sues Trump or not for copyright violations,  Trump is charged in Georgia with 13 felonies that carry up to 60 years in prison. For the RICO charge alone, Trump is facing a mandatory minimum of five years in prison.

If Trump is convicted and sentenced to prison in Fulton County, I will gleefully buy a photo of Trump sitting in his prison cell. In fact, I would even pay the Trump campaign for that photo regardless who owns the copyright!

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