Mugs & Thugs

It should come as no surprise to anyone that Donald Trump’s presidential campaign raked in some 7 million dollars in merchandise sales mere days after the release of his mug shot by the Fulton County Sheriff’s Department. Trump knows how to sell Trump to people who love Trump.

And for the people who don’t love Trump, the ex-President and his press agents let it be known in a series of acidic social media posts that his mug shot was off limits to the threat of litigation. This brazen yet canny shamelessness is hardly surprising. Yet, under the Copyright Act, at best the mug shot is public domain and at worst, protected property of the Sheriff’s department.

The real problem for Trump is that he is a public figure running for office. Indeed, for a long time he has not been a private citizen although his thirst for publicity remains unslaked no matter where he is holding court. Trump claims that the quartet of criminal investigations are bogus because all his alleged illegal activity occurred while he was performing his duties as President. But Trump wants to embargo the mug shot as if he is a private citizen being exploited by scammers engaged in commercial appropriation of his likeness.

Noted IP Blogger Edward Rosenthal elaborates:

As a general rule, 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.

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.

Anyone thinking about cashing in on a t-shirt or a poster or pillowcases (for a My Pillow?!) featuring a radically photoshopped version of the Trump mug shot should take pause. Can Trump ever be disguised? Can his image ever be transformed beyond Trump and all that he is into a new context? If Trump really does hold copyright of his image, particularly in a commercial setting, the doctrine of fair use, recently explored in The Andy Warhol Foundation v. Goldsmith (2023) comes into full and perilous play.

The mug shot is a fascinating work of performance art. Trump confronts the camera, his face a study in churlish umbrage and defiance. It’s Winston Churchill for MAGA - “We shall never surrender.” It is a look that Trump has allegedly practiced for years, perhaps to make sure the scowl is part and parcel of the actionable Trump brand. Given his talent for showmanship, one can ask is he really being serious or is he indulging in a bit of self-parody? Or both? The charm of the Trump brand, if you can call it that, is the suspicion that the bragging, the bluster and the bile are a con, a shell game designed to delight suckers and dissuade opponents and creditors.

In Campbell v. Acuff-Rose Music (1983), the Supreme Court ruled that parody of an original work qualifies for fair use under the Copyright Act, even for monetary gain. Justice Souter elaborates:

Suffice it to say now that parody has an obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107. See, e. g., Fisher v. Dees, 794 F. 2d 432 (CA9 1986) ("When Sonny Sniffs Glue," a parody of "When Sunny Gets Blue," is fair use); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 580 (SDNY), aff'd, 623 F. 2d 252 (CA2 1980) ("I Love Sodom," a "Saturday Night Live" television parody of "I Love New York," is fair use); see also House Report, p. 65; Senate Report, p. 61 ("[U]se in a parody of some of the content of the work parodied" may be fair use).

The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson's Court of Appeals dissent, as "a song sung alongside another." 972 F. 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975). Modern dictionaries accordingly describe a parody as a "literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,"[12] or as a "composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous."[13]

At this very moment, the internet is awash with Trump mugshot memes of mockery and derision, some of which seem to be for profit. People may be playing with fire. Can the safe harbor of parody in fair use really be safe if your subject is already a joker who toys with his public persona for monetary gain as well as political power? You can’t out Trump Trump. Somebody is sure to find out if and when a summons arrives.

For the fearless entrepreneur itching to ride the wave of pop culture with products featuring famous faces: be warned; it's not all fun and games. Using a public figure's image for your money-making schemes can land you in some sticky legal situations. And frankly, just defending a lawsuit, even one that you could theoretically win, can be expensive.