A legal expert has warned that there could be potential trouble and another lawsuit for Trump over the use of his mugshot on merchandise being used to fundraise for his campaign. The former President became the first to have a mugshot taken after he surrendered to Fulton County Jail in Atlanta, Georgia, on Thursday, August 24. The businessman was booked at the jail after being indicted on charges accusing him and 18 others of illegally scheming to overturn his 2020 election loss.
Trump’s campaign team, along with many other online sellers, have capitalized on him having the first mugshot of a former president by selling merchandise ranging from T-shirts to mugs and bumper stickers. Within just three days of the mugshot being publicized, the Trump campaign was reported to have made $7.1 million from its merchandise. US copyright law stipulates that the law enforcement agency that takes a mugshot is the legal owner of it, and Georgia lawmakers passed a bill designed to put an end to websites using police booking photos for profit.
While there has been no official comment from Fulton County officials on the commercialization of the mugshot, a legal expert has warned that there may be some issues for Trump and his team. Betsy Rosenblatt, a Professor of Law at Case Western Reserve University who specializes in intellectual property, explained that while the US copyright statute states US government-created works are not copyrightable, individual states and localities can own copyright in works they’ve created. She said, “I stand by the idea that Fulton County likely owns the copyright in this photograph, and… it’s entirely up to Fulton County whether it wants to enforce that copyright.”
Beysy explained that there are a number of exceptions in copyright law that “allow something copyrighted to be used for various purposes.” There are several factors that are used to determine whether a copyrighted work is being used under what’s called fair use. One of the factors considered when it comes to fair use is whether the use is transformative, which means asking whether the use transforms the “meaning, message, or purpose of the copyrighted work”.
Finally, there is the question of what effect the use has on the market for the image. Beysy explained that there is “no question” that this is a right of publicity question. Newspapers, websites, biographers, or anybody else could use that picture for news reporting, criticism, commentary, or that kind of thing. It’s a harder question whether anybody else could use it on merchandise. Surely, the right of publicity says there’s no problem with Trump using it on his own merchandise, but it says nothing about copyright, which might still get in the way of it. If Fulton County were to enforce its copyright ownership, Betsy explained, the consequences would be yet another lawsuit for Trump. She speculated that Trump would certainly come back with a fair use argument, which he may or may not prevail on.
If Fulton County were to win the suit, which Betsy said “would potentially take years”, they would receive a combination of an injunction, forcing Trump not to use the image, and damages. Damages can be worked out in numerous ways: reasonable royalty, a disgorgement of everything Trump made from the copyrighted work, and statutory damages, which add up to anywhere from $2,000 to $250,000 per work infringed. Another thing that could happen is that Fulton County could see temporary results. If there were a lawsuit over this, the plaintiff, which is Fulton County, could seek what’s known as a preliminary injunction.