Sunday 6 November 2011

Don't be a mug: Yet another reason to avoid arrest

Lenora's eyebrow always gave the game away under interrogation

This blogger is the first to admit that she is a bit behind in her blogging efforts. However, behind the scenes she has been gathering a variety of art law updates from the summer months for your edification. The favourite of these untold stories comes from an August edition of the New York Times.

Larken Design, A US based company has discovered a surprisingly lucrative trade in selling reproductions of 1955 California police mug shots.

But have the owners of Larken design got permission to use these images? Do they even need it? According to the New York Times, the origins of the prints are as follows:

“Ms. Finke [one of the founders of Larken Design] found the original photos nearly two years ago at an antiques store in … Nevada. They were thrown out more than a decade earlier by the Alameda County Sheriff’s Department in California, when it went to an automated jail-information system. The Nevada store owner had bought about 200 of them, for $50, from an unknown local flea-market seller.”

The Larken Design website says “This poster was created from the original Police Department negative we own. Awesome, right?”

The images are indeed pretty awesome but the copyright presumably belongs to the US Government (with moral rights attaching to the police photographer). This presumption was put to the test by Casey Nice, assistant sheriff for Alameda County (the County from which the mugshots originated), who told the New York Times that “since arrest records in California are public information, dissemination does not appear to be a crime. Nor did they have copyright protection.” This blogger does not pretend to understand the nuances of US copyright law but is surprised by the above verdict. Readers who have a greater understanding of such nuances – please comment below.

The photos have also been touched up to highlight physical features and, in some instances, they have been tinted. There may have been sufficient creative input by Larken Design to create a new copyright protected work in the retouched images.

Jeff liked the Larken tinting - better than Just for Men gel

In addition to the cloud of uncertainty which surrounds the copyright in these images there is the possibility of a claim for breach of privacy. Although the individuals are not named and 55 years on they have no doubt changed in appearance they are nevertheless potentially identifiable. As the company’s success increases, the potential for an individual or class action for breach of privacy must be something the owners have considered. The New York Times looked into this issue in particular detail and obtained the opinion of Peter Swire, a law and judicial administration professor at the Moritz College of Law at Ohio State University. He believed that Larken Design would have a strong defence on the basis that “they’re not telling the names of anybody, so they’re not harming any individual, and that under the First Amendment they’re allowed to publish truthful old photos… The fact they’re making money doesn’t change the analysis.”

If you have an alternative opinion please get in touch.

Larken Design is by no means the only company to use police mugshots for commercial gain. The Smoking Gun divides its mugshots collection into civilians and celebrities. Bad and Busted is an online magazine of “ALL AVAILABLE arrest records, sex offenders, and most wanted mugshots weekly!! Now for sale in Baldwin, Greene, Morgan, Putnam & Walton counties, [Georgia, USA]”. Both sites use the mugshots for entertainment/vigilantism rather than art.

Significantly, the images on these websites are all fairly contemporary. Unlike the anonymous and gentle artistic approach of Larken Design, these images are designed to maximise the embarrassment factor for the individuals concerned.

Feeling a mug? Buy your own mug book here.

[Update: Clearly Simone and I have similar interests...! For an alternative take on the issues in these photos, please see Simone's earlier post here. Apologies to readers for the duplicated material].


Anonymous said...

The U.S. government wouldn't own the copyright in photos taken by California state agency, the Sheriff's department. The State would own them instead.

And, if these were photos taken by a federal government employee in the scope of his employment, there would be no copyright in the images. 17 U.S.C. s. 105 says "Copyright protection under this title is not available for any work of the United Sates government ...." Whether states can hold copyright depends on the state - perhaps the sheriff's statement is acknowledgment that California also does not own copyright.

Photo Attorney said...

The U.S. law differs than other countries. The U.S. Government usually doesn't get copyright protection for its works. The U.S. doesn't give moral rights to printed photos unless the exist in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. 17 USC 106A, 101.

Anonymous said...

There may not be a copyright in the photographs because a mug shot does not have the requisite originality and creativity to qualify for copyright protection. If there is a copyright, then it would belong to the Alameda County government.

More relevant than privacy might be California's right of publicity law. In general, you can't make money from someone's image without seeking their permission.

I wonder if these records were part of the Alamdeda County government's record schedule and/or were offered to the county archives? If not, they might be recovered under the doctrine of replevin.