Mugshot Sites May Violate Florida's Right of Publicity
There are a number of mugshot web sites that publish publicly-available mugshots and then charge you to take them down. According to this news report, the florida.arrests.org web site, for example, will only remove certain mugshots in exchange for payment. In addition to being ethically questionable - to put it lightly - these web sites may also be violating Florida's right of publicity.
Florida recognizes an independent common law right protecting economic interests in a person's likeness. Florida has also codified this right in Florida Statute 540.08:
Unauthorized publication of name or likeness.--
(1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use ...
Thus, Florida's publicity law enables individuals to protect themselves from unauthorized commercial appropriation of their personas. Of course, the statute does provide exceptions for news organizations and other such reasons. But it is important to note that the right of publicity is generally regarded as a property right. Damages in publicity cases are measured by the commercial injury to the business value of personal identity. J. Thomas McCarthy says: "The right of publicity is not . . . just another kind of privacy right. It . . . is a wholly different and separate legal right." 19 COLUM.-VLA J.L. & ARTS 129. Infringement damages, therefore, are determined by the fair market value of the plaintiff's identity, the infringer's profits, and damage to the licensing opportunities for the plaintiff's identity.
In the case of the mugshot sites mentioned above, the sites are generating revenue using other's photographs. So it is clearly a commercial activity or for commercial purposes, as defined in the Florida statute above. But is it also a news organization providing newsworthy subject matter? Many would say not. But the state of the law on blogs, tweets and other new media is in a state of flux and will not be settled for quite some time. With regard to damages, web search results can certainly cause damage, especially in cases where the subject of a mugshot is looking for employment or seeking admission to a school. A mugshot could kill such prospects for a job-seeker or prospective student. So these mugshot sites are operating at their own peril.
If someone in Florida has been damaged or will be damaged by a mugshot on one of these web sites, they should hire an attorney that is familiar with the Florida right of publicity.
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