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Nieman Journalism Lab
Pushing to the future of journalism — A project of the Nieman Foundation at Harvard

A court case against those skeezy mugshot websites raises First Amendment issues

In going after mugshot sites, a plaintiff in Toledo is seeking to make the right of publicity extend to non-endorsement uses of people’s images.

Editor’s note: The mugshot exploitation industry — sites who obtain arrest mugshots through public records, post them online, and then seek money from the arrested in exchange for taking them offline — is about as morally dubious a line of business as the Internet’s yet produced. But a court case in Toledo that seeks to take down these sites is advancing a legal claim that — if courts were to agree — could also have a significant impact on legitimate journalistic endeavors by reframing the so-called right of publicity to include public records. (A number of legit news sites run mugshots — a worthy subject of debate and probably disdain — but they don’t add the extortion-esque element of taking payment to take the photos down.)

You’ll hear a lot more about in the unlikely event that the case would ever head down that road, but it’s still worth knowing about now. Our friend Jeff Hermes, who runs the Digital Media Law Project (née Citizen Media Law Project) at Harvard’s Berkman Center, wrote a piece about the case, which we’re republishing here. Go see Jeff’s original post if you want to see the full legal citations of the cases he’s discussion.

Before the holidays, Wired reported the filing of a putative class action in Ohio against a group of privately owned websites that allegedly collect and publish mugshot photos, and then charge those whose photos appear exorbitant amounts to have the photos removed. The lawsuit is premised on the right of publicity — that is, a person’s right to control the commercial exploitation of their name or likeness.

I have little sympathy for the so-called “mugshot racket,” but using the right of publicity as a method of attack has some issues. Ordinarily, the right of publicity is invoked to prevent the exploitation of an individual’s persona without permission through use of a name or photograph for promotional purposes. For example, the right prevents the unauthorized use of a celebrity’s likeness in advertising to falsely suggest the endorsement of a product. In that sense, the right of publicity reflects the positive value that can accrue to an individual’s identity through the individual’s efforts, and gives the individual the ability to control how that value is used. According to the Ohio Second District Court of Appeals (James v. Bob Ross Buick):

The value of the plaintiff’s name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.

It is not enough to state a violation of the right of publicity that someone’s photograph was made the subject of a commercial transaction. Rather, a violation occurs when the name or likeness is used to suggest an endorsement or other association between a person and a product or service. This concept of endorsement is built into Ohio’s right of publicity statute, Chapter 2741 of the Ohio Revised Code, which states that it does not apply to the

use of the persona of an individual that is protected by the First Amendment to the United States Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.

For that reason, I am concerned by the invocation of the right of publicity in this case. The claim does not relate to the value of individuals’ likenesses for the purpose of promotion or publicity, but the value to the individual of keeping the public from learning about negative events in the past.

To be sure, case law on this point is not without its anomalies. For example, the U.S. District Court for the Northern District of Ohio once allowed a right of publicity claim to survive a motion to dismiss filed by an expert witness who modified photographs of children to demonstrate to a jury how child pornography could be manufactured. The defendant’s motion to dismiss argued that the images he generated were commercially worthless; the court’s two-sentence analysis of the claim suggested that the photographs had commercial value by the fact that the expert was paid to create them. However, the brevity of the analysis and the fact that it appears in an unpublished federal decision make this case weak support for extending Ohio’s right of publicity.

On a more general level, the reliance upon rights of publicity as a basis for a claim against these websites represents an attempt to shift the focus from the content of the sites (which would generally be protected under the First Amendment, because they reveal truthful and public information) to the coercive monetary transaction proposed by these sites. This is an entirely reasonable effort, as it is the commercial aspect of these sites that is truly offensive. However, this lawsuit apparently misconceives the right of publicity as relating to the transaction — the fixation of a dollar amount to the name or likeness — when the right more properly relates to whether the underlying content takes advantage of a person to convey a particular message of endorsement.

For that reason, reliance on rights of publicity in this context appears to be misplaced. But again, the underlying concept of focusing on the coercive nature of the transaction at issue seems sound. There are laws intended to address unfair behavior, including blackmail/extortion statutes and so-called “Little FTC Acts” that prohibit unfair and deceptive trade practices. Whether such theories are available under Ohio law is a question for another day, but one well worth exploring.

Jeff Hermes is director of the Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society.

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  • commadash

    I don’t see how they can be blamed for extortion/blackmail if they don’t make the initial contact and demand people to remove what was legitimately published. The “Right Of Publicity” argument is completely unrelated and will likely be dismissed. 

  • commadash

    Won’t fly, waste of court time.

  • RenkTonk

    INteresting, I think the suit raises some valid points!

  • Thaddeus White

    did the crime now stop bitching about other people knowing about it.

  • RenkTonk

    No way man, now how messed up is that?

  • commadash

    You call the business ‘sleazy’ and with some operators (as with any sector) I would agree that it is. However, I feel you miss a big part of the issue here. The requests to unpublish are unsolicited and publishers of all kinds get stuck in the middle. This isn’t unique to mugshot publishers although it’s certainly more common with crime publishing than other areas of publishing. If policies are predetermined, transparent and clear, paying to unpublish is a sort of a dispute resolution process and to me seems like a fair trade practice.

  • thisUniqueUserName

    how does this argument hold up if the official arrest record – the prior negative act – was expunged? is not the website appropriating publicity value by enhancing its marketing claims of ‘thousands of mugshots’, ‘largest collection’, ‘definitive resource’, or similar?

  • commadash

    Expungement doesn’t apply to private corporations, it’s a gov. process for gov. agencies. That being said, most of these sites will actually remove expunged records for free.

  • littlehead

    Now that’s not very Christian or forgiving, Pastor White. Rethink that. This is not about people who “did the crime.” On the contrary, for the most part this is about people who didn’t do the crime but are being punished for being arrested, and citizens who did what they were supposed to do, but now being held more responsible than the punishment the judge ordered to make things right.

  • littlehead

    I’m not completely convinced that Kyle Prall owns the phony West Indies LLC. 

  • littlehead

    NONE of these sites will remove expunged records for free.

  • littlehead

    The websites aren’t journalism or the press. This isn’t about using photographs and arrest details in crime stories. 
    The websites are commercial websites that built private databases of law enforcement records that they appropriated without authorization or permissions.”Publishers” aren’t stuck in the middle of anything. With a click of a button, they take it down. Or not. The “publisher” is the same person as the “removal service.”

    No legitimate news source EVER “unpublishes” an article. If they make a mistake, they print a retraction. No news reporter or legitimate publisher EVER offers removes something for a fee. 

  • Khione

    Oh, this is just the beginning, friend. Either way.

  • Jake Hilweh
  • Jake Hilweh

     It should fly…. its people like you with the “it doesn’t affect me” attitude that keeps it on the ground.

  • Jake Hilweh

  • commadash

    Crime journalism has been around for over a hundred years in the same format, that is notifying the community of government activity. That certainly is journalism in my book. To your other point, unpublishing isn’t unique to mugshots, it exists out there and many other publishers face the same issue. You should look it up.

  • Khione

    Nope. This business has not been around for long. Crime “journalism” certainly has never been in “this format.” Absolutely unprecedented. Look it up.

    Gossip rags like “National Enquirer” were initially not accepted at all, and now considered “yellow journalism.”  They trade in titillating sensationalism.

    This is entertainment. Spying on your neighbors. Passing a mugshot of your co-worker around the office. It appeals to emotion and plays to human interest in naughtiness and risky behavior. Shock factor. It’s exciting and vaguely unsettling. It’s exactly the same as the actresses’ crotch shots now very popular.  There’s no story; everybody just wants to see
    I’m going to call it “Scarlet Journalism”

    It informs of nothing.

    So, the question is, should we be allowed this kind of use? Should we have someone tell us we can’t?  
    I don’t want to be censored. But let’s be honest and forthright about what it is, and not attempt to slip it past the rules under the guise of something already legitimized.

    If you want to do this, then advocate for it truthfully. The power and authority is in securing the right to do this for exactly what it is, and not predicated on dubious justification and indefensible rationale, perpetually vulnerable to subjective interpretation.
    Go for it. You’ll probably get more support than you think.

  • Khione

    Since when did we stop knowing what “news” was?

  • Khione

    Which first amendment rights are at issue with the mugshot websites controversy? My impression is that they engage in e-commerce, not journalism.

    Why Journalists Shouldn’t Fear Europe’s ‘Right to be Forgotten’ Regulation Commission”Right to be Forgotten.” Stanford Law Review

  • littlehead

    Here’s another article from the same source. At first glance, unrelated. But then, you think about it.
    The article focuses on limiting the First Amendment to preserve gun rights, or the Second Amendment.Publishing citizens’ personal information obtained from government records. In other words, unsanctioned private registries by class. Citizens who have gun permits. Citizens who were arrested. The gun permit holders are crying foul. But that seems more reasonable to me. It was a credentialed legitimate news outlet, specifically in relation to the Connecticut shooting. It wasn’t random. It is news.  Like all news, it has a life cycle. It drops off the newspaper website and out of public view fairly rapidly.“The bill is going to prohibit publications from printing private information of gun owners.”Interesting. So some citizens warrant privacy, but not others.“Many states already exempt gun registry information from their respective FOI laws, considering such disclosure to be an unwarranted invasion of privacy. The Supreme Court of Michigan, for example, found that gun ownership is “an intimate or, for some persons, potentially embarrassing detail of one’s personal life.”So we shouldn’t know who owns guns, because that’s a personal, potentially embarrassing personal detail.Strange – a real newspaper (that most definitely IS protected by the First Amendement) isn’t allowed to publish “public records” as part of serial news coverage of an-ongoing story, obtained appropriately with a proper request, but a commercial e-commerce website operator (who is not a journalist) who ‘appropriates’ public records off police websites with no public records request, CAN?  And expects his action to be protected by the 1st Amendment.I think the mugshot guys should quickly scrape that gun permit database before it disappears and offer to unpublish each one for a fee. 

  • An Yup

    One could argue that, by only reporting on the arrest itself rather than the case in full, that the report is false through omission.
    Whether its or the New York Times, if the arrest of an individual is the only thing reported/displayed… isn’t that libel.

    If you were arrested for first degree murder, then a newspaper writes an article about the case and a website makes your mugshot publicly available, when you are later found innocent…
    if your mugshot is still available online and/or if the newspaper article is not updated to include that you were found innocent, then the only thing that remains is the damage being done to your reputation.
    Furthermore if a judge orders that the case be expunged from your permanent record but the case remains in the public domain, then the case was not expunged from your record, right? If a police officer arrests you and then googles you, that police officer now knows your record even though it was ‘expunged’.

  • Joshua Benton

    In the United States, truth is a defense for libel. If an article says “John Smith was arrested and charged with first-degree murder,” that remains a factual statement — he *was* arrested and he *was* charged — even if he is acquitted a year later.

  • littlehead

    Are you missing the subject? It’s about booking photos taken by the police at a booking facility. Police databases scraped without lawful access or legitimate public records requests and processes. It kind of freaks me out that police departments aren’t more concerned about this. Do they not understand this is an obvious sign that computer systems are compromised? Are they so short-sighted and gleeful about the public shaming value, that they fail to be even a little cautious?
    I’m waiting for the next shoe to drop – a smart lawyer uses this as a defense. It will be successful.
    What it’s NOT about – journalism and reporting news.

  • Guest

    SO what? If you were arrested for a crime this is unfortunately public information. And it SHOULD be. Don’t be embarrassed, you have much company with the over-bearing police state which makes tons of non violent and even victimless crimes [I.E. DRUG WAR] a major incident. So what I’m saying is this is GOOD since it will make people realize half the population are ‘criminals’ of one sort or another. The stigma for having an arrest record will go away. It sure should. Wear it like a badge of honor. You are a real person not a pig or a nark….