The Rights to Donald Trump's Mug Shot

By Maristella Collazo-Soto, Capital Member of Ferraiuoli LLC, Co-Chair of the IP Practice

This article was originally published in Microjuris.

Several months ago, former President of the United States, Donald Trump, had his mug shot taken in the state of Atlanta for criminal charges. The photograph has received significant media coverage, and Trump's political campaign used its notoriety to create a wide variety of campaign merchandise using that image.

Naturally, Trump's campaign was not the only party interested in monetizing this coveted photograph. Online, one can find a variety of products using the mug shot image for profit. This raises the question: do they have permission to use Trump's booking photo?

When it comes to images, it's important to consider what licensing rights are required to use them if we are not the owners. The most basic right inherent in an image is its copyright. Federal copyright law establishes that the creator of a work holds the copyright unless otherwise agreed to in writing. In line with this, typically the entity that takes or creates an image owns the copyright, unless specified otherwise. The image of Trump's mug shot was taken by the state government where he was arrested, so the state likely holds the copyright, unless there is a state law indicating otherwise. If the state government owns the copyright, they could theoretically sue for copyright infringement against third parties, including Trump's campaign, if they use it for commercial purposes.

In addition to copyright over Trump's mug shot image, there is also his right of publicity. This right allows individuals to control the commercial use of their likeness. Currently, this right is governed by state law in the United States.  Using a person's image, including that of politicians or public figures, on merchandise like shirts, mugs, keychains, photographs, among others, generally constitutes commercial use.

Since there is no federal statute governing right of publicity, the general rule is to apply the law of the claimant's domicile state. In Trump's case, his domicile state is Florida, so one would need to assess whether there is a valid claim under Florida's state law for unauthorized use of his image. However, it's noteworthy that Trump's campaign sells merchandise on its website featuring images of President Joe Biden and Vice President Kamala Harris. For instance, they have products such as beer koozies featuring Biden and Harris with the tagline "The only thing worse than a warm beer" alongside their photos. Therefore, it would be interesting to see how Trump's campaign would respond if allegations of violation of his right of publicity were raised, given they are using images of third parties for commercial purposes presumably without authorization.

From a legal perspective, it is crucial to understand that almost every image is associated with rights that require licensing for any commercial use. Therefore, it is always recommended to verify these rights before using images.