Mug Shot Website and Illinois Right of Publicity
by Jerry Glover
October 9, 2017
In a recent Illinois right of publicity case, the defendants were the owners of muagshots.com and unpublisharrest.com. Mugshots.com is a searchable database of arrest record information with photographs of those arrested. The web site creates its content by using software to copy the information publicly available on websites for departments of corrections in the U.S. It also files Freedom of Information Action requests for inmate and arrest records from public, government databases. A disclaimer on the website states that publication of an arrest record/mug short is not necessarily an indication of guilt and that all are presumed innocent until proven guilty. The disclaimer also stated that the website did not guarantee the accuracy or timeliness of the content. That disclaimer is followed by a “Unpublishing Notice” which states that people who were found not guilty may qualify to be “unpublished” from the website. Unpublisharrest.com is a separate cite, owned by Mugshots, that monetizes the removal of arrest records from Mugshots.com. There are ads and links on Mugshots for Unpublisharrest.com. Unpublisharrest.com earned more money from take down fees than Mugshots did from advertising sales on its site.
The plaintiffs are two inmates and a third person who had been wrongfully charged with a crime. One plaintiff claimed that after he was released from prison his mugshot continued to reside on Mugshots.com which co-workers found. As a result, he claimed he lost his job. He also alleged that job offers had been rescinded because prospective employers had also seen the Mugshots profile. A second plaintiff had similar claims. The third plaintiff who had been unlawfully arrested claimed Mugshots posted information about his arrest but never noted he was cleared of the charge. When he called Unpublisharrest he was told that removal of the information would cost $399. He claims to have been denied several jobs he applied for.
All plaintiffs sued claiming a violation of the Illinois Right of Publicity Act (IRPA), 756 ILCS 1075 et seq. Gabiola v. Sarid, 2017 WL 4264000 (N.D. Ill. September 29, 2017) arguing that the Mugshots and Unpublisharrest sites used their photos without permission and for a commercial purpose (the take down fees). bThe IRAP prohibits the use of a person’s identity for commercial purposes without consent. The defendants moved to dismiss plaintiffs’ complaint alleging the web sites are protected by the First Amendment, the IRPA does not require permission or authorization to speak on matters of public concern and the photos were not used directly to promote a product or service as required by the IRPA.
Turning first to the First Amendment argument, the district court stated the well-known rule that commercial speech, while protected by the First Amendment, does not receive the broad protection non-commercial speech receives. If speech is “commercial” it must propose a commercial transaction even if it also contains discussion of public issues. The court noted three things courts look at to determine if speech is commercial: (1) if it is an advertisement; (2) if it refers to a specific product/service and (3) the speaker has an economic motivation for the speech. Using these factors, the court concluded that the websites in question were commercial speech because a commercial transaction is proposed by Unpublisharrest—pay us and we’ll take down your mugshot/arrest record. The court described the mug shots as advertisements for the removal service.
The court then looked at the plaintiffs’ right of publicity claim which, as noted above, prohibits use of someone’s identity for a commercial purpose without that person’s consent. The court noted that the IRPA defines “commercial purpose” as “the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods or services, (ii) for purposes of advertising or promoting products, merchandise, goods or services. The IRPA, however, exempts from liability use of someone’s identity for non-commercial purposes like news, public affairs or a political campaign. The court stated that Mugshots promotes itself with plaintiffs’ likeness and others by using the embarrassing nature of an arrest to promote the website, draw consumers and provide an easy link to removal of mugshots for a fee. Mugshots does not fall under the public interest exception since it is not a traditional news outlet while its companion site, Unpublisharrest, generates revenue by offering to remove mugshots from the website. The court concluded that everything on Mugshots (including articles) are “click-bait” to increase consumers and embarrass the profiled arrestees and drive revenue to Unpublisharrest.
The court concluded that the plaintiffs had stated a claim for a violation of the IRPA.