Did the Trump Campaign Cross Copyright Lines with Mugshot Merch?
Recent events have led to an interesting legal debate concerning former President Donald Trump and a potentially dicey affair with copyright law. The heart of the matter? The mugshot of Trump taken at Fulton County Jail in Atlanta and the subsequent use of this photograph in campaign merchandise. The products, flaunting the portrait and the mantra "Never surrender," ranged in price from $12 to $34. Within a mere 72 hours, the campaign cashed in a staggering $7.1 million from these sales.
However, experts in the field of intellectual property are raising eyebrows over the legality of such a move. According to U.S. copyright law, the law enforcement agency that captures a mugshot holds its legal copyright. The 2022 Journal of Intellectual Property Law at the University of Georgia School of Law elaborates, "In the context of photographs taken by law enforcement during the booking process, the author of the mugshot photograph is the law enforcement agency."
Betsy Rosenblatt, a legal scholar at Case Western Reserve University's School of Law, points out the limitations surrounding the use of such photographs. Speaking to Spectrum News 1 Ohio, she stated, “You’re prohibited from reproducing it, making a derivative work of it, distributing it without authorization, or that is to say distributing anything that isn’t the one copy you already lawfully have, and various other things. Making a public display of it, making a public performance of it, which opens up all kinds of fascinating possibilities here.”
It's crucial to note here that the Trump campaign has not altered the original mugshot in any meaningful way. This renders moot any argument about the campaign having created a derivative work. MSNBC commentator Dean Obeidallah stresses that because the campaign profited from the image, claiming 'fair use' is not a viable defense either.
Interestingly, the Trump campaign seems to have some awareness of the precarious copyright situation. In a rather ironic twist, the Trump campaign had previously cautioned others against unauthorized use of the same mugshot for profit. Chris LaCivita, a top advisor to Trump, sent out a tweet warning campaigns, PACs, and others against unauthorized use of the mugshot for fundraising purposes, stating, "WE ARE COMING AFTER YOU."
While it's up to Fulton County Sheriff’s Office to take legal action, they may opt for a more practical route. Betsy Rosenblatt suggests that the office might decide against "the expense and trouble of hiring copyright counsel and sending out takedowns and cease-and-desist letters." However, given the dire financial straits of the Fulton County Jail, as publicly stated by Fulton County Sheriff Patrick Labat, the millions earned could prove irresistible.
Trump was booked at Fulton County Jail on August 24 on thirteen counts related to alleged election tampering in Georgia during the 2020 elections. Despite the charges, he staunchly denies any wrongdoing and labels the proceedings as "election interference."
Whether or not legal repercussions follow remains an open question, and as of now, both the Fulton County Sheriff's Office and the Trump campaign have chosen not to comment on the issue.
What the unfolding scenario underscores is the intricate and often contentious relationship between politics and intellectual property law, leaving us pondering the question: where do the boundaries of copyright begin and end in the landscape of political merchandise?
At the end of the day, it’s always best to check with an IP attorney before launching your next entrepreneurial venture.