Mugshots Lawsuit Lashaway Kaplin Cyberstalking Cyberbullying Cyberharassment Legal remedy.
Debra Lashaway, et. al. v. JustMugshots.com, et. al.
Case Number: CI0201206547
Court of Common Pleas, Lucas County, Ohio
Filed December 3, 2012
For nearly a year we have been promoting the legal theory that publication of mugshots on any site that seeks advertising revenue, fees for mugshot removal, subscription fees, or even seeks donations is in violation of the “Right to Publicity.”
While mugshots may be public record in some jurisdictions, their being public record does not deprive a person of the legal right to receive fees for the use of that persons name and image in a commercial venture.
Twenty-nine states have enacted some form of the “Right of Publicity.” Even if a particular state has not encoded the “Right of Publicity,” a person has relief under the Lanham Act, 15 U.S.C. 1125.
This case, Lashaway v. JustMugshots, was filed under the state of Ohio’s statutes rather than under federal law.
Under Ohio Statute 2741.01, the right of publicity is encoded as:
2741.01 Right of publicity in individual’s persona definitions.
As used in this chapter:
“Persona” means an individual’s name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value.
- “Commercial purpose” means the use of or reference to an aspect of an individual’s persona in any of the following manners:
(1) On or in connection with a place, product, merchandise, goods, services, or other commercial activities not expressly exempted under this chapter;
(2) For advertising or soliciting the purchase of products, merchandise, goods, services, or other commercial activities not expressly exempted under this chapter;
(3) For the purpose of promoting travel to a place;
(4) For the purpose of fundraising.
- “Name” means the actual, assumed, or clearly identifiable name of or reference to a living or deceased individual that identifies the individual.
- “Right of publicity” means the property right in an individual’s persona to use the individual’s persona for a commercial purpose.
- “Trier of fact” means the jury or, in a nonjury action, the court.
- “Written consent” includes written, electronic, digital, or any other verifiable means of authorization.
- “Institution of higher education” means a state institution of higher education as defined in section 3345.011 of the Revised Code, a private nonprofit college or university located in this state that possesses a certificate of authorization issued by the Ohio board of regents pursuant to Chapter 1713. of the Revised Code, or a school located in this state that possesses a certificate of registration and one or more program authorizations issued by the state board of career colleges and schools under Chapter 3332. of the Revised Code.
Source: Ohio Revised Code 2471.01
From the plain language of Ohio’s law, we see that the name and the image of a person cannot not be used in a commercial venture without first obtaining the written permission of that person. The exception is if the mugshot does not use a person’s name. However, not using a person’s name would takeaway the ability to cyberstalk, cyberharass, and cyberbully that person. It is the cyberharassment, the cyberstalking, and cyberbullying that drives a person into paying the mugshot or other negative content removal fees that these sites seek. These fees constitute unjust enrichment. The Lashaway legal filing also makes a showing of the alliance between the mugshot publishing sites and the mugshot takedown services.
Attorney Scott A. Ciolek’s press release on this lawsuit reads: “In recent years, a multitude of websites have sprung up that use FOIA public record requests to gain access to booking photos from the various county and state agencies that process arrested individuals. These photos are indexed and spread across the internet to gain attention for the mugshot websites. Visitors to the mugshot websites are prompted to pay exorbitant fees to have their mugshots removed from the website and from Google image search, only to have their mugshots appear on some other site a week or two later.
This practice of using the names and photos of Ohio residents for the commercial gain of the websites is a direct violation of Ohio’s Right to Publicity per ORC §2741. The status of the booking photos and names as part of the public record does not relieve Defendants of the obligation to obtain consent from the those whose persona they are exploiting for commercial gain.”
Wired magazine asked legal scholars about the “Right of Publicity” foundation the Lashaway case is based on. The article quotes those scholars as saying, “First Amendment scholars suggest the tactic has some legal legs.”
Peter Scheer, the director of the First Amendment Coalition, agrees with Ciolek:
“I think that it’s not a trivial legal claim. In other words, it’s novel and it’s untested. These are new waters and so forth,” Scheer said in a telephone interview. “As I think about, the results may differ in each state. But I do think it is not a ridiculous stretch to say charging somebody to remove one’s mugshot from an internet site infringes that individuals’ right of publicity. That’s a very narrow theory of liability.”
Initially, Scheer thought Ciolek’s approach might be bad news for the media, which also profits from running mugshots. But, on second thought, he changed his mind. “It doesn’t infect legitimate news gathering and publication,” he said.
Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, said it is a closer call. “I’m sure the websites would maintain they are serving a public interest by broadcasting the mugshots,” he said in a telephone interview. “The fact they’re willing to remove them for a fee undermines this ‘public service’ argument.”