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Artists Use 1950s Mug Shots, Privacy Debate Ensues

September 12, 2011

Larken, a company run by two Cincinnati women, sells prints and products featuring retouched criminal mug shots from the 1950s. The photos were discarded by a California Sheriff’s department, sold at a flea market, and eventually found their way to the Ohio artists.

As the New York Times points out, “it raises questions with no clear answers about the legality and propriety of distributing government property like mug shots…”

“Mug Book”

The biggest legal concern raised by such publication is obviously one of privacy. What privacy right does an accused criminal, arrested but perhaps not charged or convicted, have?

This case is not without precedent. (See: here, here, here, here). The trouble is that there is no clear consensus and the appropriate rule likely varies from state to state.

Even the experts interviewed by the NYT offered little clear guidance. Peter Swire, of the Ohio State University Moritz College of Law (go Buckeyes) offered this defense:

“In terms of public revelation of private fact, they can say they’re not telling the names of anybody, so they’re not harming any individual, and that under the First Amendment they’re allowed to publish truthful old photos … The fact they’re making money doesn’t change the analysis.”

Jason Schultz, of UC Berkeley:

“We think, ‘Wow it’s in the public record,’ but in reality if it’s in a file somewhere that you can’t Google, it remains private until we need it. Now that records are becoming more public, I think courts are trying to think about how to be sensitive to those interests given that they can be indexed by search engines, copied and reposted.”

It seems unlikely that those pictured would ever sue Larken for invasion of their privacy. The prints and products put out by Larken do not identify the named subjects, and the original police department’s name is replaced with “Cincinnati Police Department.” As Professor Swire pointed out, there is no clear harm. Additionally, if the subjects are dead, there is basically no risk.

However, it is easy to imagine an enterprising young artist turning more modern mug shots into artwork. The Smoking Gun has an extensive mugshots section, which can be sorted specifically by categories such as Hollywoodpolitics,battered (ouch)pole workers (strippers), and others. Smaller publications, including the Panama City News Herald in the Florida Panhandle, also post mug shots with some regularity.

If an artist were to use those libraries to create her work, she should be prepared to fight off a privacy suit. The artist should be prepared to argue that the mugshot or the completed piece is either not offensive to a reasonable person, or that the depiction is newsworthy, i.e., it accurately portrays a matter of public concern.

Disregarding the legal concerns, now I want a “Mug Book” and a “Walls Notebook.” My Christmas list just keeps growing.

Discovered via the ABA Journal.

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