Innocent Until Proven Posted: Regulating Online Mugshot Publication with Intellectual Property Law

Whether convicted of a crime or booked into jail for a misunderstanding, many individuals rightfully seek to shed the criminal label from their reputations and start anew. However, photo evidence of the individual’s association with the criminal justice system by way of a published mugshot photograph is often only a click away for someone, such as a potential employer or new neighbor. Mugshots, originally created to aid in the detection of criminals, now serve primarily as a device of public shaming by law enforcement agencies who publish mugshots on their website and groups of private citizens who run social media websites dedicated to mugshot publication. Following a storm of websites that posted mugshots en masse and charged fees for removal, state legislation attempted to regulate for-profit mugshot publication. However, this legislation has subsequently garnered criticism for its ineffectiveness. This Note first argues that mugshots implicate the privacy rights of the depicted individual and surveys invasion of privacy torts and the right of publicity for their applicability to the regulation of mugshot publication. Second, this Note offers a non-traditional use of copyright law to provide a remedy for arrestees. Finally, this Note submits that the question of a legal remedy need not be reached because mugshots, having lost their investigative value and gaining traction as a shaming device, are now obsolete