Trump Mugshot Ignites Its Own IP Firestorm

When former President Donald Trump surrendered to Georgia authorities on August 24th, 2023, to stand trial on a litany of alleged felonies related to the 2020 election, he set yet another precedent for a US President: that of being booked, fingerprinted, and photographed as a defendant in a criminal action outside of the impeachment process.

Within minutes after his mugshot was taken, it had spread across social media like wildfire.?

Conservatives who felt Trump is being wrongly accused or even railroaded reposted the defiant, glowering portrait of the visibly furious former President in support. Liberals who felt Trump is getting his long-overdue comeuppance did the same in celebration. Across and even outside the political spectrum, internet hobbyists spied a potentially huge payday catering to Trump’s supporters and detractors alike with merchandise, memes, and other offerings including the image.?

But now there’s a new wrinkle: The Trump 2024 political campaign is saying that the use of Trump’s mugshot in these ways is IP infringement, and the campaign should rightfully receive a cut of any and all profits made from the already-infamous image.

Others argue that the image is in the public domain and its use as political parody qualifies for protection from litigation or other penalties under the fair use doctrine. Who’s right? Who’s wrong? And how much profit are we talking about here, anyway? Let’s take a closer look and break this down to see how it might shake out in court!

Donald Trump and Past IP

Admire, loathe, or ignore him, it’s hard to argue that Trump understands the value of locking down rights to his intellectual property, from emblazoning his name as a trademark across everything from steaks to colleges to hotels to airplanes, to trying to trademark his famous “You’re fired!” catchphrase from The Apprentice.

Trump has always been quick to jump on any possible avenue for profit–and IP has always been up there with real estate on the list of assets that tend to grow more valuable with time and exposure.?

As much as 80% of a large corporation’s valuation may ride on its IP holdings, which is why so many multinational companies are in arms races to be the first to patent and trademark even the most currently outlandish or unworkable ideas before their competitors do. It’s also why companies such as Google, Amazon, Tesla, Microsoft, and Moderna have such huge IP portfolios.

The ideas themselves may not be practical right now, but if a competitor finds a way to make them work in real-world conditions, they’ll quickly find out they also have to write a series of very large checks to the original IP owner! This genteel sort of legalized corporate warfare has been going on for decades, and it’s a key driver of the astronomical valuations we’re seeing megacorporations and their owners and heads achieve.

Trump, of course, is well aware of this, which is why he and his companies own dozens of trademarks. However, not all of his attempts to capitalize on “his” IP have worked out in his favor.

Remember I mentioned that he TRIED to trademark the phrase “You’re fired?”The USPTO ruled that, aside from the fact it’s too short and too common a phrase to be protectable under IP laws, the phrase also was too similar to a learning game called You’re Hired and rejected the mark. While Trump isn’t shy about using the catchphrase, he also can’t turn other people using it into profit in a vacuum.

Many of Trump’s other endeavors in the trademark world have likewise been invalidated, either because the subsidiary companies using the marks folded for one reason or another or because the marks have been struck down through USPTO and/or the courts.?

So it shouldn’t come as any surprise that Trump’s campaign managers are arguing that Trump’s likeness, even in the form of a mugshot, and any profits deriving from it rightfully belong to Trump and/or the Trump campaign. But there are a couple of countervailing problems with this point of view which may wind up setting yet another series of precedents in the legal world.

Whose Pic Is It Anyway?

The first thing we need to note is what public domain is and is not. “Public domain” is not a concept that is actually, explicitly stated in federal law. Rather, it is defined as an absence of a work or piece of intellectual property meeting the criteria to be eligible for IP protection. For example, works in the public domain are either too old, are not protected by copyright or trademark, or were protected by IP laws and the author/s chose to waive those rights and make their works available to all. Commonly, in most places in the country, mugshots are considered to be public domain because a) they are not owned by any person or entity as such, and b) they are considered to serve a vital public interest. This definition helps us understand why so many people using Trump’s mugshot in Etsy shops and the like argue that the image is and should be fair game. However, it runs up against other critical rights: the right of publicity and the right of access.

Just about everyone in the US, with the possible exception of convicted felons in some circumstances, has what is colloquially known as a “right of publicity” under federal law and explicitly stated in the state laws of about half of the United States. That is to say, individuals have the right to restrict, reserve, and profit from the use of their voice, image, likeness, or other characteristics which are clearly theirs and theirs alone. For example, the company that owns the rights to Elvis Presley’s music, voice, and likeness has threatened to sue Las Vegas wedding chapels whose officiants impersonate The King of Rock n’ Roll in their ceremonies. Trump’s campaign is arguing something very similar: that because Trump’s mugshot is, of necessity, a representation of Trump himself, Trump owns the image and thus the right to reproduce and profit from it, or suppress it and try to make it go away. For this interpretation, they appear to be relying on the following provision of the Lanham Act, §1125, which reads:

(a) Civil action

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A)

is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person,* or

(B)

in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

(2)

As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.*

(3)

In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.

*Emphasis added by me

In essence, the Trump campaign is arguing that because the mugshot is of a celebrity, in this case Trump, the state of Georgia had a duty not to release the mugshot. Further, the Trump campaign asserts that anyone using Trump’s likeness, including the mugshot, without his or the campaign’s express written consent is engaging in an act of infringement. Based on this reading, the Trump campaign may have a point. But, as with most things in the law, the reality is a good deal murkier.

For example, the Lanham Act, as a federal law, does not explicitly enshrine a right of publicity, except by tangential assertion of other rights related to a person’s likeness. In the state of Oregon, public officials are barred from releasing booking photos and mugshots except under very tightly controlled, narrowly defined parameters. The stated reason for this is to prevent people who have not been found guilty of a crime from having their reputations and future prospects unfairly and unjustly tarnished.?

However, the State of Georgia, other states, and even the federal government have laws which do enshrine the public’s right of access to information. In brief (and in theory), any information produced or developed by state or federal agencies is considered to be a part of the public record. In practice, there are a number of restrictions on how, when, why, and where this information can be shared. But a living former US President being forced to submit to a mugshot steers all of these laws into new and uncharted waters. There has simply never been a case this polarizing or of such far-reaching political and governmental importance and impact, and that means most of the commonly understood rules and precedents will have to be revised and rewritten, frequently in real time, as this case develops.

It may be argued that if anyone is entitled to IP rights to the mugshot, it would be the Fulton County Sheriff’s Office. By this reckoning, if there is any infringement to be found, FCSO would be a more likely candidate than Trump.

However, this interpretation directly contradicts what the laws I’ve discussed above say about the right of access and the right of publicity. Moreover, for this to apply, FCSO would have to go after hundreds if not thousands of potential “infringers” and take action ranging from DMCA takedown notices to filing civil actions against each of them individually. We can well imagine the cost, the personnel hours, and the potential problems which could arise from acting upon this interpretation.

The Bottom Line?

My colleague Josh Gerban told US News and World Report that "In all likelihood, given how polarizing Trump has been, and everything that is already in the marketplace around his likeness, [this allegation] would not likely be a legal priority."

Personally, I’m inclined to agree.

It would be nearly impossible to isolate “appropriate” uses by Trump’s supporters versus “inappropriate” uses by his detractors. The three-way train wreck of competing rights and responsibilities under the law, over and above the fact that Trump has not always demonstrated the best judgment when it comes to crafting trademarks, would make this case a political, legislative, and judicial nightmare if it ever got off the ground.??

Given all this, and the fact that Trump is currently embroiled in a trial including over a dozen felony charges, I think it’s extremely unlikely that the Trump campaign’s allegations will amount to anything on their own. In the long term, it is possible that political allies and rivals for the former President may decide to make some bold moves to change the laws at the federal level to pave the way for actions of this sort in the future, or quash them completely. But for now, this IP firestorm seems destined to burn itself out well before anyone, pro or con Trump, is likely to get their fingers burned. Just the same, this case is going to be worth watching because if the Trump campaign has its way, it could radically and fundamentally alter the practice and protection of intellectual property for the lifespan of this nation.

ABOUT JOHN RIZVI, ESQ.

John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).

His books include "Escaping the Gray" and "Think and Grow Rich for Inventors" and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show - Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com

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