In August 2023, within hours of Donald Trump’s police booking photograph being published by the Fulton County Sheriff in Atlanta, Georgia, his campaign website was selling his mugshot-branded mugs, T-shirts, drink coolers, bumper stickers, and signed posters – reportedly earning $4.18 million over the first 24 hours for his ‘Trump Save America’ election campaign for President in 2024. This was evidently good business. But was it legally sound?
Trump’s Georgia State indictment accuses 19 defendants of 41 State criminal offences, of which 13 are alleged against Trump: together they amount to attempts to overturn Trump’s loss to Biden in Georgia’s Presidential election process of November 2020. Notably, for example, Trump phoned Georgia’s Secretary of State urging him ‘to find 11,780 votes’ that Trump needed to defeat Biden. It is significant that this so-called ‘Georgia election interference case’ was the last of four indictments for which Trump has been arraigned in 2023; but is the first involving the taking and publishing of his mugshot after surrendering to police.
Trump was first indicted by New York State on 4 April 2023. This so-called ‘hush money case’ accuses Trump of falsifying business records in connection with a payoff to porn star Stormy Daniels, who claimed she had a sexual encounter with him. The payoff is alleged to have been made weeks before the Presidential election in November 2016, to avoid a potentially campaign-damaging sex scandal. 34 New York State criminal offences of corporate record-keeping are alleged. It is significant that no mugshot was published following his surrender and arraignment.
Trump was then indicted under federal law on 3 August 2023 in Washington DC. This so-called ‘insurrection case’ accuses Trump of mounting a wide-ranging campaign, from losing the November 2020 Presidential Election through to 6 January 2021, to derail the transfer of power to Biden – including spreading false information about voter fraud, pressuring the vice-president to discount legitimate results, and at the very least acquiescing in the storming of the Capitol building. The indictment essentially accuses Trump of orchestrating in violation of federal law an ‘extraordinary conspiracy that threatened to disenfranchise millions of Americans’. It is significant that no mugshot was published following his surrender and arraignment.
Trump was then further indicted under federal law on 10 August 2023 in Florida. This so-called ‘classified documents case’ accuses Trump of taking with him highly sensitive national security documents, when he left the White House in January 2021. Notably, Trump is accused of violating federal law not only by taking classified material, but also by storing it haphazardly at his Florida resort, where he showed it to unauthorised people, and seeking to destroy evidentially relevant security camera footage. It is significant that no mugshot was published following his surrender and arraignment.
Trump has pleaded not guilty to all four indictments, for which respective trials will be held throughout 2024. No serving or former US president has ever been indicted before, nor had his mugshot taken and published. That Georgia mugshot has already achieved worldwide iconic status, and been reproduced and commercially exploited – not by police and prosecuting authorities, but by Trump himself.
Police authorities worldwide have used mugshots in criminal investigations since the advent of commercial photography in the 1840s, when the aims were then and still are straightforward: to assist law enforcement by recording the facial identity of apprehended suspects, and to warn and protect the public by releasing shots of suspects subsequently convicted – some police agencies nowadays publish only after criminal trial and conviction, others immediately upon apprehension or surrender. In Trump’s cases, his facial identity was already known worldwide when he was indicted, as was media reporting of his surrender for processing and arraignment – which are perhaps key reasons for his mugshot publication being skipped by three of the four law enforcement agencies.
Moreover, copyright law is likely to have been a further consideration in Trump’s two mugshot-less federal cases. US copyright law is federal and, like the UK and most other countries worldwide, follows internationally adopted standard provisions. Notably, the author of a photograph is its taker, who automatically owns copyright in the shot – unless taken by an employee in the course of their employment (in which case the employer owns copyright), or is taken by an independent freelancer under a commission contract stating that the commissioner will be the sole copyright owner (or perhaps joint copyright owner with the photographer). Owners of copyright-protected works have the exclusive right to control reproductions, publication, and commercial exploitation/merchandising of such works or versions derived from them.
However, an exceptional copyright law provision applies to federal copyright work: copyright protection ‘is not available’. In other words, although US Government is the copyright owner of its mugshots, it cannot enforce its copyright to prevent reproduction and/or their commercial exploitation. It is commonly said in the US that federal government copyright works are in the so-called ‘public domain’. In which case, it is perhaps for this additional reason that federal prosecutors, the US Department of Justice, skipped the mugshot process to avoid any such image being freely commercially exploited worldwide – perhaps especially being merchandised with impunity by Trump.
Trump’s only mugshot was taken at Georgia State’s Fulton County Jail, where everyone processed there has their photo taken as a standard booking procedure. Yet the handout to the media from the local Sheriff’s Office is revealing:
‘This handout image released by the Fulton County Sheriff’s Office on August 24, 2023 shows the booking photo of former US President Donald Trump. Former US president Donald Trump was photographed for a police mug shot after his arrest on August 24 at the Fulton County Jail in Georgia … The picture, which has yet to be released, is set to become a world-famous image as Trump fights multiple criminal cases at the same time as running to regain the White House in next year’s election. (Photo by FULTON COUNTY SHERIFF’S OFFICE / AFP) / RESTRICTED TO EDITORIAL USE – MANDATORY CREDIT “AFP PHOTO / FULTON COUNTY SHERIFF’S OFFICE ” – NO MARKETING – NO ADVERTISING CAMPAIGNS – DISTRIBUTED AS A SERVICE TO CLIENTS(AFP).’
Evidently copyright in the mugshot is owned by its author, Georgia State; but perhaps jointly with Agence France-Presse (AFP), the world’s oldest international news agency. AFP may have taken the shot on behalf of Georgia State, but has certainly been responsible for disseminating it worldwide – albeit restricted to non-commercial use with photo credit. Trump’s lucrative mugshot-branded merchandising campaign appears not to comply with the copyright owner/s’ restrictions; and raises key questions.
Is Trump violating US copyright law? Or was Trump granted a copyright licence to merchandise by Georgia State and/or AFP and, if so, is such licence royalty-free or financially remunerative to the copyright owners/s?
© Henry Lydiate 2023