An Ohio man who found his police booking photo on several privately run mugshot websites is suing those sites under a novel legal theory: that the mugshot publishing industry is violating his right of publicity.
First Amendment scholars suggest the tactic has some legal legs. Seventeen states have similar right-of-publicity statutes, from California to New York.
Phil Kaplan, a 34-year-old freelance graphic artist charged in 2011 for failure to disperse from a party a few doors from his Toledo residence, said his mug appeared on bustedmugshots.com and mugshotsonline, which he said charge hundreds to get a photo removed. He refused to pay.
Kaplan, whose charges against him were dropped in April, said the mugshot may be a reason why he isn't getting many callbacks for work. But he said he is willing to publicize his plight to help himself and others.
"I just know," he said in a telephone interview, "that there are lots of people who have suffered this same kind of injustice."
There's dozens of these types of sites with names like florida.arrests.org, okiemugs.com and justmugshots.com. There are no laws forbidding the sites, and the First Amendment generally protects publishers who redistribute public records like booking photos.
Kaplan's Ohio lawyer says it's time to fight back. He is suing a handful of the sites in Ohio on accusations that they are exploiting images for commercial gain (.pdf) and plans to file other suits across the country.
"Anybody who wants to exploit your image for commercial gain has to pay you, just like you're licensing copyright," attorney Scott Ciolek said in a telephone interview. Damages are $10,000 a violation under Ohio law, he said.
He has received hundreds of inquiries the past week from potential clients following the filing of the suit and its publication in the Toledo Blade on Dec. 5, he said.
Clearly, the legal approach is turning the concept of the right of publicity on its head. Often, it's asserted by celebrities whose likeness is being used, without their authorization to promote products. Celebrities, for example, sue to be compensated for the unauthorized use of their likeness.
Ciolek maintains that the act of profiting -- by demanding payment to remove a mugshot -- is the same thing. But in this instance, it's not a celebrity but somebody embarrassed of their past. And the plaintiff is suing others for profiting on the removal of their likeness, not for publishing it.
Some of these sites also have banner ads of mugshots displayed on other websites -- again without the permission of the arrestee. The banner ads misappropriate somebody's likeness -- again without permission -- to drive traffic to the mugshot site, he said.
Ciolek is careful to say that these sites have a First Amendment right to publish the mugshots on their websites, just like any news outlet would. They lose their constitutional protection when they start charging to remove mugs because those arrested still have a vested property right to their likeness, he said.
"In that use, that is not in connection with news and public affairs," he said. "If you write a story about somebody that is arrested, and use the image, that is not going to be a problem."
Peter Scheer, the director of the First Amendment Coalition, agrees with Ciolek.
"I think that it's not a trivial legal claim. In other words, it's novel and it's untested. These are new waters and so forth," Scheer said in a telephone interview. "As I think about, the results may differ in each state. But I do think it is not a ridiculous stretch to say charging somebody to remove one's mugshot from an internet site infringes that individuals' right of publicity. That's a very narrow theory of liability."
Initially, Scheer thought Ciolek's approach might be bad news for the media, which also profits from running mugshots. But on second thought, he changed his mind.
"It doesn't infect legitimate news gathering and publication," he said.
Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, said it's a closer call.
"I'm sure the websites would maintain they are serving a public interest by broadcasting the mugshots," he said in a telephone interview. "The fact they're willing to remove them for a fee undermines this 'public service' argument."
Ciolek's case has another plaintiff, Debra Lashaway of Ohio, who declined to comment through her attorney.
The suit seeks to represent the 259,000 Ohioans whose mugs have appeared on mugshot sites. The sites siphon the publicly available mugs from local police department websites, where they were hidden from Google's web crawlers. Once on a removal site, the mugs get scraped by Google's spiders and become visible via a search of somebody's name.
Defendants justmugshots.com, bustedmugshots.com and mugshotsonline.com did not respond for comment. (In our testing, we were able to remove a mugshot from mugshotsonline.com for free via an e-mail.) Findmugshots.com was offline as of Wednesday. The fifth defendant in the case, mugremove.com, said it was wrongly accused.
Operator Stattford Shealy said his site is connected to his reputationturn.com reputation-management company, in which he works with nearly two dozen mugshot sites to help people get mugs and links removed, often charging hundreds of dollars. He pays directly to advertise on those sites or they randomly appear their via Google's AdSense advertising network, he said. He is not hosting any mugs, he said.
"I am absolutely falsely named," he said in a telephone interview.
Still, he said the mugshot sites are "tacky."
"But based upon what I understand," he said, "they're not illegal based on public records law."