User talk:Elvey/Non-free mugshot

Forum discussions

• http://forum.freeadvice.com/showthread.php?p=1201205
• http://ask.metafilter.com/mefi/25814

Related links

• http://myfloridalegal.com/sun.nsf/manual/B3145618EC05D8EC852566F30070699B (applicable only to Florida, citing [1])
• http://www.lc.org/hotissues/2001/aba_1-18/public_records_laws_by_state.htm (Note that this is just a public-records-law listing by state. None of the statutes cited explicitly disclaims copyright on anything. —Simetrical (talk • contribs) 16:31, 5 July 2006 (UTC))
• http://www.mddcpress.com/mdaccess/sunshineweek/foiguide.pdf (HTML version) (warning: doesn't appear to cite sources, may be unreliable)
• http://www.courtstuff.com/JCIT/wandm.htm "SOURCES OF RIGHTS TO ACCESS PUBLIC INFORMATION" (Cites US Supreme Court rulings, the consequence of which are that extension of federal copyrights to non-creative works produced by parties acting on behalf of states would be unconstitutional, and that such information can therefore never be afforded copyright protection.) --- AdamRoach 22:05, 29 August 2007 (UTC)

Official response from US copyright office (but see below):

As a general matter, state and local governments may claim copyright in their works. However, public ordinances, court decisions and similar official legal documents and public records of the state and local governments are generally not considered copyrightable for reasons of public policy.

Freeness

According to User:Dragons flight,

The Compendium of Copyright Office Practices (Compendium II) section 206.01 states, "Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments." and 206.03 clarifies "Works (other than edicts of government) prepared by officers or employees of any government (except the U.S. Government) including State, local, or foreign governments, are subject to registration if they are otherwise copyrightable."

This doesn't seem to square with the idea that mugshots are PD. Look at the Office's response again: "public ordinances, court decisions and similar . . . public records". Is a mugshot "similar" to a public ordinance or court decision? It seems very different to me. I've e-mailed them asking for clarification. Hopefully they'll get back to me. —Simetrical (talk • contribs) 04:02, 5 June 2006 (UTC)

That was speedy. Here's my question, exact wording:

Someone I know has alleged that when consulting the Copyright Office, they were informed that "As a general matter, state and local governments may claim copyright in their works. However, public ordinances, court decisions and similar official legal documents and public records of the state and local governments are generally not considered copyrightable for reasons of public policy."

I would like to ask for clarification. Is this statement correct precisely as worded? What statute, regulation, or court decision does it refer to? I'm asking in behalf (unofficially) of the website Wikipedia (http://www.wikipedia.org/), some of whose users have concluded largely on the basis of this statement that booking photos/mug shots are in the public domain.

Thank you for your time.

Here's their response, exact wording:

The copyright statute does not address this issue. Section 206.01 of the Compendium II of Copyright Office Practices states as follows:

206.01 Edicts of government.
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments. Please see http://ipmall.info/hosted_resources/CopyrightCompendium/chapter_0200.asp. There may well have been litigation that specifically addressed this issue. However, we do not provide legal research services. You may wish to research the caselaw in order to determine the disposition of the courts on the specific issue of whether mug shots/booking photos are considered copyrightable subject matter.
rg **************IMPORTANT NOTE**************
As of July 1, 2006, most filing fees will be $45 per application.
For other fees, please see:
http://www.copyright.gov/reports/fees2006.html **********************************
Copyright Office
Library of Congress
101 Independence Ave SE
Washington DC 20559
(202) 707-3000
www.copyright.gov

**********************************

So now we have to consider: do mugshots qualify as "Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents"? Clearly not. I think these images will need to be reclassified as unfree. —Simetrical (talk • contribs) 17:03, 5 June 2006 (UTC)

Since no one's responded, I've put a notice on the tag saying it's disputed. —Simetrical (talk • contribs) 16:32, 5 July 2006 (UTC)

I am by no means an expert (or even an amateur, really), but could it be possible that these images are simply ineligible for copyright because they contain no original authorship, similar to survellience cameras? --tomf688 (talk - email) 16:27, 9 July 2006 (UTC)

Maybe, maybe not. Unless you can get either a court case or some other kind of high-quality legal opinions on this, preferably from the Legal department or ideally from the general counsel, I would suggest that the images be considered unfree. There are certain limited aspects of creativity involved in positioning of the subject that, it could be argued, aren't merely functional, or at least are no more functional than such aspects in an ordinary photograph. Remember that the bar for creativity is very low. —Simetrical (talk • contribs) 00:25, 10 July 2006 (UTC)

This can get complicated. [2] seems to imply that there's really no law, at least in Minnesota, about whether booking photos are released into the public domain. The commissioner found that booking photos should be released to the public, ostensibly with duplication allowed, but didn't address the copyright issue. However, [3] seems to imply that in Washington County, OR, booking photographs aren't considered copyrighted material -- or, at least, the state allows free, unlimited reproductions. All that having been said, it seems to me that the law varies from state to state or, alternatively, that there is no clear legal status. Certainly that would mean that they couldn't be classified as GFDL or PD images. --FreelanceWizard 05:15, 23 July 2006 (UTC)

As far as I can tell, in my experience, all documents that are a matter of public record are non-copyright, unless they are material specifically sold by the government for revenue-generating purposes. Public records, like booking photos are subject to Sunshine laws that allow for access and duplication by the press and common citizenry. How can something that's photocopied by the press a gazillion times and used in newspapers have a copyright. Even so, the rule of fair use would still apply here as the photo is being used for historic, nonprofit purposes and there isn't an alternate photo reasonably available.24.130.41.116

Public records (except of the U.S. federal government) are typically copyrighted in the United States. Generally broad license for copying is available, but not always; they must be dealt with on a case-by-case basis. And a mugshot might qualify as fair use, but that would also have to be evaluated case-by-case. —Simetrical (talk • contribs) 20:21, 24 July 2006 (UTC)

First off - I almost never contribute to Discussions and don't know how this formatting and editing works - if someone can let me know, that'd be helpful. Anyhow - each state, and often each County in the United States sets its own laws relating to these photos. In some cases, they are not legally available under Sunshine laws at all, while in other cases they are clearly listed as PD and freely available. This distinction is, as I said, very location-by-location, and should not be generalized for the United States in general. Thus - this lable is categorically wrong, because there is no way to know the copyright status of a mug shot / arrest picture taken out of context. One example: http://www.mass.gov/Eeops/docs/chsb/cori_public_hearing_of_regs.pdf . This states that, just in the state of MA, mug shots of arrested people are only releasable to the public (not even public documents) in a very specific set of circumstances, making it case-by-case even within the state - it would depend on whether the person in the picture served jail time, how much jail time, and how long they have been out since then. I hope this helps. Zakolantern 06:18, 27 July 2006 (UTC)

Isn't a booking photo considered to be part of the arrest record? If so, it seems to me that a good place to start researching the copyright issues associated with booking photos might be to examine case law as it relates to arrest records in general. --DavidGC 19:05, 6 August 2006 (UTC)

Booking photos are, I think, and I am not fully sure of this, only *sometimes*, in *some* places a part of an arrest record. It depends on the state, the open records law in effect at the time and place they were arrested, ectera. I would love to know the official answer, but don't think there is one for the entire USA. —The preceding unsigned comment was added by Zakolantern (talk • contribs) 05:17, 7 August 2006 (UTC)

Booking photos are public records. The copyright status of public records varies by state, but generally they're copyrighted. —Simetrical (talk • contribs) 07:29, 7 August 2006 (UTC)

Pursuant to the above evidence and general agreement on the TFD, I've changed the template to reflect the fact that booking photos are not in the public domain. —Simetrical (talk • contribs) 07:29, 7 August 2006 (UTC)

So, all this armchair lawyering by non-lawyers is interesting, but I suspect we'd get closer to the truth by listening to people with doctorates pertaining to the subject at hand. Here's one: "[W]hen the authors in question are legally obligated to perform their creative effort, the Patents and Copyright Clause does not authorize a copyright. This is exactly the situation that exists for the work product of public officials. As long as they are not acting ultra vires, they are performing public duties when collecting and as- sembling information. Even if some of their selection and arrangement would seem to qualify under the Feist originality test, the creative component of their selection and arrangement does not stem from the economic incentive provided by the copyright law because it is legally mandated and therefore fails to qualify under Feist. Whenever a public duty is the cause of the expression, the incentive justification under the copyrights and patent laws is absent, and any construction of the Copyright Act to protect such official work product would be unconstitutional." - Henry H. Perritt, Jr., JD -- see "SOURCES OF RIGHTS TO ACCESS PUBLIC INFORMATION" AdamRoach 22:00, 29 August 2007 (UTC)

I am an attorney and hope that I can clarify this. There seems to be a lot of confusion about public domain v. public release (a/k/a publication) here. A mug shot is a public record produced by the government, and thus cannot be copyrighted. Not all public records are "made public" or "publicly released" or "published" — for example, an investigator's notes or in some jurisdictions, drivers' license data — but no public record, published or not, can be copyrighted. All public records are non-copyrightable and are automatically in the public domain — though the public may never know it if the records are not made public. However, contrary to this general rule, in 2001 one federal appellate circuit (the 2d) tangentially granted a local government copyright in a tax map created by that government while adjudicating a Freedom of Information case. County of Suffolk v. First American, 261 F.3d 179 (2001) but see contra, also from the 2d Circuit, Legi-Tech v. Keiper, 766 F. 2d 728, 733, 735 (1983). As granting copyright to government at any level for any record does not advance the purpose of copyright law (which is to encourage the production of new works by assuring authors the profit of ownership), the 2d Circuit's decision seems unlikely to stand if challenged or after a split in the circuits. Suffolk is also contrary to the long line of decisions upholding the right of the public to see and use the records they own. For example, county zoning records don't belong to the county; they belong to the people of that county. Records held by public entities are owned by the public. Finally, copyright always has First Amendment implications, and never more so than when it is a government unit attempting to restrict publication or use of its records. In any case, the 2d Circuit's appellate decision is not binding on all the other circuits, nor would it apply even in its own jurisdiction in cases in which the local government has not asserted copyright. So, regarding mug shots, I disagree with Simetrical's change to the template and will ask him to revert it. -- LisaSmall ^T/C 18:57, 11 December 2007 (UTC)

Spot on, generally, however, one subcategory of public record is often not in the public domain : records held by a a government agency but not created by a government agency. For example, the exhibits in a copyright infringement case and the briefs filed by private parties in any case do not enter the public domain when they are filed, even though they have probably entered into the public record. --Elvey (talk) 01:31, 13 February 2014 (UTC)

TfD nomination of Template:Mugshot

Template:Mugshot has been nominated for deletion. You are invited to comment on the discussion at the template's entry on the Templates for Deletion page. Thank you. —Simetrical (talk • contribs) 21:59, 23 July 2006 (UTC)

Issues that need to be addressed

First, the name should be {{non-free-mugshot}}, per recent naming conventions for copyrighted (non-free) media. More pressing, though, is the first bullet. It says that the "It is believed that the use of this photograph [...] to illustrate the person in question [...] qualifies as fair use under United States copyright law." As written, it goes against our policies for copyrighted images, in that we almost always never use copyrighted images as the primary illustrations of living individuals. There needs to be language qualifying in what context the image may be used, i.e., in the context of a discussion on the arrest, rather than just carte blanche for use anywhere on the article. --Jeffrey O. Gustafson - Shazaam! - <*> 06:06, 28 August 2007 (UTC)

I know I'm coming to the party a bit late (I missed the fray the first time around), but I think we need to take into consideration the opinion of experts in our evaluation of free versus non-free. See my comments in "Freeness," above, citing a Doctor of Justice on the topic... --- AdamRoach 22:09, 29 August 2007 (UTC)

Shazaam!, booking photos (mug shots) are not copyrighted and cannot be copyrighted, see explanation above written earlier today. Mug shots are free media in the United States, whether they were taken at the federal, state, county or city level. The government is unable to claim copyright in these images, which are in the public domain from the moment of their creation regardless of whether the government ever distributes them or not.-- LisaSmall ^T/C 20:30, 11 December 2007 (UTC)

Seems to me that mug shots from Federal cases would be much simpler than those from state cases, as public domain "works of the United States federal government." Can anyone comment on that? I have a mug shot from a federal indictment I'd like to upload. -Pete 16:33, 5 October 2007 (UTC)

Thank you, AdamRoach, you're right that expert opinions are needed in this discussion and I did my best to provide one in the section above earlier today. -- LisaSmall ^T/C 20:30, 11 December 2007 (UTC)

If the mugshot was taken by the United States Bureau of Prisons, or the Federal Bureau of Investigation (FBI), then you should use the PD-USGov-DOJ template, as it is their picture. --AEMoreira042281 17:03, 27 October 2007 (UTC)

Per Shazaam above, I revised the template to read to illustrate the booking consistent with WP:NFCC. Booking photos typically carry too much POV to be use to illustrate the person in question generally.

"A mug shot's stigmatizing effect can last well beyond the actual criminal proceedings. A mug shot preserves, in its unique and visually powerful way, the subject individual's brush with the law for posterity. ... Moreover, mug shots contain information that is intended for the use of a particular group or class of persons. They are taken for law enforcement purposes, and they are not routinely made available to the public. ... A mug shot is more than just another photograph that portrays "freely available" information." Times Picayune Pub. Corp. v. U.S. Dept. of Justice 1999 (see Freedom of Information Act Guide, May 2004 Exemptions No 6, Footnote 55 or search exemption6.pdf for "Times Picayune."

I am not aware of any U.S. state that releases booking photos into the public domain. For example, Minnesota releases booking photos as "public data" (compare Minnesota "private data", "nonpublic data", and "not public data") (see Minnesota statute 13.82, subd. 26(b)), but that only means data available to the public in a reasonable manner (see Minnesota statute 13.82, subd. 16). It does not mean public domain or Wikipedia free use. Minnesota statute 13.82 itself is public data, but right at the top of the Minnesota statute 13.82 page is a copyright notice. If Minnesota considered "public data" to mean Wikipedia free use, then a victim could not have a right to request withholding of certain public data under Minnesota statute 611A.021. -- Jreferee t/c 16:42, 31 October 2007 (UTC)

Mug shots are not, and cannot, be copyrighted. See the discussion above with today's date regarding the difference between "public domain" and "released to the public." Minnesota may choose not to release a mug shot; but Minnesota does not, and cannot, have copyright in any mug shot. -- LisaSmall ^T/C 20:30, 11 December 2007 (UTC)

• Copyright issues: Shouldn't this template note that the copyright for this image is owned by the institution taking it? --AEMoreira042281 17:03, 27 October 2007 (UTC)

Mug shots are not, and cannot, be copyrighted. See the discussion above with today's date regarding the difference between "public domain" and "released to the public." -- LisaSmall ^T/C 20:30, 11 December 2007 (UTC)

Post-restore to userspace comments

http://en.wikipedia.org/w/index.php?title=Wikipedia:Possibly_unfree_files/2013_April_1&oldid=548389870#File:Jerry_Rosenberg_1424049c.jpg