Donald Trump claims he never heard the term "mug shots" before his arraignment last week in Atlanta.  He says that "they didn't teach me that at the Wharton School of Finance." While it is not clear what Trump did learn at Wharton, it's reassuring to hear that he lives in such rarified air that he never ran across the term in his 77 years on this earth.

Why am I mentioning this? It's because last week, for the first time in connection to his recent criminal difficulties, Trump had his photo taken when he was arraigned in Atlanta on charges relating to his allegedly attempting to overturn Georgia's 2020 presidential election results. The photo has received enormous attention, and not only because of Trump's fierce and defiant look (think Blue Steel from Zoolander).   Within hours, the Trump campaign began to sell merchandise featuring the photograph, including posters, coffee mugs, t-shirts and bumper stickers. The campaign reported that it raised more than $7 million in merchandise sales in the first few days after the mug shot was released.

Not surprisingly, the Trump campaign was not the only group to try to take advantage of this iconic image. Political opponents jumped into the mix as did a lot of other people and groups who saw an opportunity to make some money off merchandise using the Trump mug shot.  The Trump campaign is not happy about this and shot off a warning that it would come after unauthorized users. Specifically, Trump campaign manager Chris LaCivita warned sellers of merchandise using the Trump mugshot of the dire consequences they will face if they exploit this suddenly famous photo. This warning, made on the platform formerly known as Twitter, includes icons of eleven police siren icons and reads:

This brings us to the question what, if anything, can Trump or his campaign can do to stop this use of his mug shot? The first thing that might come to mind is a copyright claim, But Trump clearly does not own any copyright interest in the mug shot, which presumably was taken by Atlanta law enforcement or jail personnel. Unless the mug shot was a selfie, the person who took the photo, or more likely their employer (possibly the Fulton County Sherriff's Department), owns the copyright.  While works created by federal government employees within the course of their official duties are in the public domain (see 17 U.S.C § 105), the Copyright Act does not prohibit a state or local government or entity from claiming copyright protection for works created by its employees, subject to certain exceptions, including the government edict doctrine. (See this post.)  The extent to which the copyright owner could (or would) assert that ownership over the copyright in the photo is not at all clear.  

But copyright aside, Trump might have at least a theoretical right to bring a claim that the use of his image on certain third party merchandise violates his right of publicity and/or his right to be free from the commercial appropriation of his name, likeness or other indicia of identity. Note that this claim likely would belong to Trump personally, and not to his campaign.

The right of publicity, and analogous protections against commercial misappropriation, are creatures of state statutory and/or common law. As a general rule, one looks to the state of domicile of the claimant, which in this case would be Florida.  Florida has both common law and statutory protections against the use of a person's name, portrait, photograph or other likeness for commercial purposes.

The protection offered by Florida, like the protections elsewhere, are limited by the First Amendment. Thus no one can sue over the use of their identity for newsworthy or other protected expressive activities. That is why no one can prevent the use of their name or picture  in a news article, on a magazine or book cover, or for other informational or even most  entertainment purposes.  And there are many cases that analyze the intersection of right of publicity law and the First Amendment in situations where the line may not be clear (e.g., in artwork portraying famous people or t-shirts depicting celebrities).

As a general rule, however, uses for items such as posters, coffee mugs, t-shirts and the like are considered commercial rather than informational items. Paris Hilton was able to successfully sue over the use of her image on a greeting card, despite the fact that it included some short, humorous commentary about her. And others have prevailed in claims over their depiction on posters and similar items.  But does that logic apply in situations where the item of merchandise does include some sort message, whether pro- or anti-Trump?

And, at least in theory, right of publicity protection extends to the uses of the names and likenesses of political and other celebrities. So it is possible that a (former) President could successfully bring a claim, especially if the use was in connection with the advertising or sale of a clearly commercial item (e.g., "Donald Trump uses our golf balls"). Perhaps because political figures and candidates do not often bring right of publicity or related lawsuits, there is not much authority on the question whether the First Amendment preempts claims arising from the use of an image of a candidate or office holder in the midst of a political campaign on an item generally used for commerce.  

There is, however, at least one case that brings into question the validity of the statement above, and this really is going to test the memories of readers of this post. In 1968, Pat Paulsen, a comedian best known for his appearances on the Smothers Brothers television program, ran a mock presidential campaign. When someone other than Paulsen started to sell "Paulsen for President" posters, Paulsen sued for violation of his right of publicity, but his claim was rejected with a New York trial court judge stating that the poster was "sufficiently relevant to a matter of public interest to be a form of expression which is constitutionally protected and deserving of substantial freedom." Paulsen v. Personality Posters, Inc., 59 Misc.2d 444, 299 N.Y.S.2d 501 (N.Y.1968).  The decision was not appealed.

Of course, the names of office holders and candidates are frequently used on items that traditionally might be considered commercial, such as banners, posters and bumper stickers. And the depicted individuals rarely complain. After all, the free publicity is usually good for them and they may be scared off by the potential for bad press and/or legal expense that would result from pursuing a claim against an opponent or third party.

In thinking about this, my sense is that there probably is a good First Amendment defense to a claim arising from the use of candidate’s name or likeness, even if on something usually considered a commercial item like a poster, coffee mug or bumper sticker.  The mention of a current candidate’s name on this type of item does seem to me to be a form of protected expression, whether or not it is accompanied by some larger message.  Many of the items featuring the Trump mug shot include additional messages, pro or con (e.g., "Never Surrender!), but it may well be that the use of Trump's mug shot would be protected even if not accompanied by any purportedly expressive message. 

One final note: The official Trump 2024 site offers items that, if Trump were to prevail on his mug shot claim, theoretically could lead to claims by others. For example, there is a beverage cooler set that shows pictures of Joe Biden and Kamala Harris with the legend "The Only Thing Worse Than a Warm Beer..."   So Trump better be careful.   I would hate to see his campaign disrupted by legal matters.