Mugshots of Leon Czolgosz from after his arres...

Should copyright cover mugshots?

What happens when the spirit if not the law of copyright is misused? A recent effort by Salt Lake City, Utah Sheriff Jim Winder to limit the distribution of mug shots is a case in point. Sheriff Winder has claimed copyright on the photos to avoid releasing them to Kyle Prall, who runs the website Prall’s website posts mugshots and charges people a fee to take them down. It was a model used by the infamous (and now seemingly defunct) website

Sheriff Winder had this to say: “I believe that the practice of using these mug shots to belittle and abuse our citizens is immoral and repugnant,” he said when discussing the websites in general during an interview Tuesday. “A compassionate society does not utilize the scarlet letter,” he said.

Those are certainly noble sentiments. Prall’s site seems not to aspire to lofty ideals. If some whose picture is up can prove that they were not guilty or that the charges were dropped, the pictures will be removed – free of charge. Otherwise, the fees run between $98 and $178, according to The San Antonio Express-News. There’s a “rush” charge if one would a picture removed in 2 days instead of 20.

There are a couple of issues at work here. The first is that copyright law is being used  to censor a website and not applied for the purpose for which it is intended. The real purpose of copyright is to protect the ownership rights of content owners and producers. It in turn provides an incentive to continue producing content. The self-proclaimed goal of Sheriff Winder in this case is to inhibit distribution. Granted, the website doesn’t sound like a worthy paradigm for independent content producers, but free speech is involved. What would happen if a government agency made efforts to restrict access to other types of government documents on the basis that they too were repugnant?

The second issue is the very right of the Sheriff’s office to claim copyright and to inhibit the distribution of government documents. Federal records are public documents. Access may be restricted for reasons such as national security but copyright is not the right path to pursue if restrictions are indeed called for. The laws regarding the public availability are not as straightforward or consistent when it comes to state laws. States may have the right to restrict the circulation of some documents. But here too copyright is not the right action. What’s more, mugshots have historically been viewed as part of the public record.

TechDirt uses this case as an example of why all government created works should be in the public domain. Personally, I think that’s a step (or two) too far. There are sometimes compelling reasons to restrict the distribution of government documents. That might even attach in this case to the distribution of mugshots in cases of innocence or where charges have been dropped. However, copyright is not the correct or appropriate way to do it. It is a shortcut not worth taking.




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