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Mar 01 2014

Lawsuit Over “Hot Convict”‘s Mug Shot Shows Various Rights Contained in a Photograph

Meagan Simmons was arrested on DUI charges in 2010. Her photogenic mug shot was posted to an arrest record database, and eventually found its way onto Internet image boards. There, it spawned a meme playing on Simmons’ looks and her status as an apparent inmate, which enjoyed dozens of iterations, some of which are shown throughout this post. But when her mug shot ended up as a promotional photograph on InstantCheckmate.com, she got a lawyer and filed suit in Federal Court.

HotMug1As reported in yesterday’s Tampa Bay Times, Simmons, a mother of four from a place called Zephyrhills, Florida, initially weathered her new-found fame with grace, doing interviews and celebrating after she “made the cut” when Inside Edition included her in an episode about the most attractive mug shots. She did not file suit when dozens of memes started popping up poking fun at her beauty and criminal record. Her lawyer, Matthew Crist explained to the Times that poking fun of Simmons and making memes of her face for pure fun and parody are fair game under the First Amendment and Copyright Law, but using his client’s image for financial gain makes its use different from the myriad memes made with Simmons’ mug. “At the end of the day, this is actually about intellectual property,” Simmons’ attorney, Matthew Crist, told the Times. “If someone is going to use your image, they need to pay you for it.”

HotMug2And there is a succinct explanation of the issue here. This is not a copyright issue. The photograph is a mugshot taken by the government and becomes part of the criminal file – most of which is a public record. The government cannot have copyright in its photos, they are “owned” by all of us essentially. That’s why many times I tell people to check government-owned photo archives for images taken by governmental agencies to use for their websites. Even if the photograph was privately owned, there might be a fair use defense to a copyright claim since it could be argued that the image was “transformed” to become a parody instead of a mug shot.

But Crist is relying on Ms.Simmons right to publicity/right to privacy. Every individual has the right to use (or not use) their image or likeness for commercial gain as they see fit. If you want to use someone else’s face to promote your product, you have to pay that person or get their permission. While all states have some form of right to publicity laws, California and Indiana have some of the strongest, granting these rights to their State’s residents even after their death. New York and Massachusetts do not grant the rights to the heirs of their residents, so the bucks stop when you die. Companies for example are free to use Marilyn Monroe’s image to promote their product because when she died she was a NY resident. Of course, you would still have to have permission from whomever had the rights to the photographs you want to use, but you can draw a brand new version of Marilyn’s face and slap it on a candy bar if you want right now.

HotMug3To me this lawsuit seems to be a sure fire winner. Ms Simmons did not give permission for InstantCheckmate.com to use her likeness and they are clearly using it for a commercial purpose. I have employed this same strategy to help victims of the Internet scourge known as “Revenge Porn.” This is when idiots put up pictures of their exes on various websites like my ex.com or the now defunct isanyoneup.com. They tag the pictures with their exes names and usually caption it with some horrible slur about the person. If the girlfriend took the picture and sent it to the boyfriend then the ex-girlfriend also has the copyright in the image and can send a takedown notice. But if it’s a picture ex-loverboy took, then you can use right to privacy/right to publicity laws to force the website to take it down as all of these sites are commercial enterprises and are not in it just for laughs.

So Ms. Simmons and her attorney are on the right path here. She was a trooper and grinned and bore it when she was the butt of jokes but once someone started to try and make money off her famous mugshot, she drew the line. Looks like she will have the last laugh.

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