copyright of individual site vs. federal law's dictation of public domain

[honest_citizen]

What is the name of your state (WV)?

This regards the re-publishing of arrest record content.

If a website that originally published a mugshot in conjunction with an arrest publishes the following text regarding its content:

"The West Virginia Regional Jail and Correctional Facility Authority specifically and expressly prohibits the reproduction of any information found on its web site or pages for the use in any compilation of arrests, archive of booking photos, or other similar database of arrests, and or booking photographs without the express written consent of the West Virginia Regional Jail and Correctional Facility Authority. A compilation shall consist of any presentation of 3 (three) or more booking photographs, published by any means, without an accompanying news story identifying a common accused criminal enterprise... Unauthorized or illegal use of the information is strictly prohibited."

Is this enough to prevent the materials from being apprehended by outside sites and republished, or are they protected under the blanket of federal law dictating arrest records as public domain? Is a mugshot considered part and parcel to the arrest record, and therefore public domain free to re-publishing and manipulation by whoever so chooses? Is the prohibition of reproduction of a websites original content essentially useless when pitted against federal law?

 

[quincy]

What is the name of your state (WV)?

This regards the re-publishing of arrest record content.

If a website that originally published a mugshot in conjunction with an arrest publishes the following text regarding its content:

"The West Virginia Regional Jail and Correctional Facility Authority specifically and expressly prohibits the reproduction of any information found on its web site or pages for the use in any compilation of arrests, archive of booking photos, or other similar database of arrests, and or booking photographs without the express written consent of the West Virginia Regional Jail and Correctional Facility Authority. A compilation shall consist of any presentation of 3 (three) or more booking photographs, published by any means, without an accompanying news story identifying a common accused criminal enterprise... Unauthorized or illegal use of the information is strictly prohibited."

Is this enough to prevent the materials from being apprehended by outside sites and republished, or are they protected under the blanket of federal law dictating arrest records as public domain? Is a mugshot considered part and parcel to the arrest record, and therefore public domain free to re-publishing and manipulation by whoever so chooses? Is the prohibition of reproduction of a websites original content essentially useless when pitted against federal law?

No, notices like the one posted by the West Virginia Regional Jail and Correctional Facility Authority cannot prevent someone from taking what has been published on that site and republishing it elsewhere. What the notice does is opens up to potential legal action the person who has purloined the material from the rights-protected website.

The material posted on the West Virginia website is copyrighted as presented, even if the separate parts of the website content may be in the public domain. Copyright laws are federal laws.

Do you have a specific concern regarding arrest records and mug shots?

 

[justalayman]

Quincy.
I think the point is more;

Are not mugshots considered in the public domain due to they being produced by a governmental entity and as such, how could they legally control the re-use of the pics by others?

It is what many sights already do and from what i recall there is no legal means to prevent a person from posting the pictures. I would suspect the same rules of law would apply to other sections of the site but using the pics as an example.

 

[quincy]

Quincy.
I think the point is more;

Are not mugshots considered in the public domain due to they being produced by a governmental entity and as such, how could they legally control the re-use of the pics by others?

It is what many sights already do and from what i recall there is no legal means to prevent a person from posting the pictures. I would suspect the same rules of law would apply to other sections of the site but using the pics as an example.

Oh. You think this is another "mug shot/arrest records" website question? That question has certainly been addressed with some frequency on this forum.

Mug shots and arrest records are not always considered public domain material. Some courts have heard cases filed against sites that publish these records for profit, with the lawsuits based on violations of privacy laws, publicity rights laws, copyright laws and defamation laws (among others). Some states have addressed and some states are addressing the legality of these arrest/mug shot sites, especially when these websites are connected with "content removal" sites that charge for the removal of the material posted.

While public domain material gathered independently can often be published without problem, mug shots and arrest records are not always available for publication by any one or any entity other than the entity holding the records.

 

[justalayman]

I guess the most basic question is;

Does the government enjoy copyrights such they can control the pictures or not?

And if they do, why have other areas refused to act to protect the pictures while claiming the pics were public domain and as such, could not prevent the use by others.

While I applaud the efforts of areas that have taken action to counter the use of the pics, I also find it kind of ironic that anybody could make a defamation case or privacy rights case when the pictures were take from an open public website. If a private person is guilty of defamation or invasion of privacy for republishing the pictures, why isn't the government also guilty for the exact same charges?

 

[FlyingRon]

Federal government works are are not subject to copyright.
For the state, it varies from state to state. California, for example, follows the Federal lead in that works by the government are in the public domain. Some states make certain government records free from copyright, but reserves it on others. New York, on the other hand, claims copyright on all works by the state.

 

[quincy]

Florida does not consider mug shots public domain material. Mug shots fall under the state's FOI/Public Record law exemptions. New Jersey courts have found the opposite. The records are, in other words and as FlyingRon noted, viewed differently by the different states.

Here is an interesting article published in 2013 on the Digital Media Law Project site, by Jullian Stonecipher, titled "Florida Bill Targets 'Mug Shot' Websites," which addresses some of the problems faced by individuals, and by states, in stopping the publication of police record and mug shots: http://www.dmlp.org/blog/2013/florida-bill-targets-“mugshot-websites”-hits-crime-reporting

There are some online news organizations that have always published arrest records and mug shots but who have changed their policies in the last couple of years to allow for a speedy and free removal of these records from their places online, if the person who is featured contacts the site and can document that the arrest was in error, the charges were dismissed, the charges were reduced or there was no conviction. This policy change is in response to state efforts and changing societal views.

Some government websites include on their sites copyright-protected material, even when much of the material posted on a web page might be in the public domain, this to halt a once-common practice by "for-profit" websites of copying the site's web pages for easy republication.

I really haven't kept up with the legal status of arrest and mug shot websites this past year, though. I will post back if I locate anything worth including here.

 

[FlyingRon]

West Virginia does appear to allow the state government to assert copyright on at least some of their works. If the government site says they assert copyright, one might be inclined to believe it.

Note the facts aren't protected by copyright. A list of names and charges are probably not protectable. The mug shots may be a different story.

 

[quincy]

Here is a link to an article by Tracie Powell titled "For mugshots, privacy v. public interest" that was published in the March 2013 issue of the Columbia Journalism Review. It addresses a decision by the Department of Justice that the US Marshall Service would no longer release mugshots "unless a law enforcement purpose would be served."

http://www.cjr.org/cloud_control/mugshot_battle_continues.php

I guess I have missed a bit of what has been going on with mug shots in the recent past.

 

[FlyingRon]

Well the feds really can't do anything about downstream users unless they want to pass a law making such sites illegal.

WV on the other hand is free to sue people (or make use of DMCA provisions) against those who abuse their copyright. There's no "federal preemption" here that says the states have to follow the fed's lead on copyright.

 

[quincy]

Well the feds really can't do anything about downstream users unless they want to pass a law making such sites illegal.

WV on the other hand is free to sue people (or make use of DMCA provisions) against those who abuse their copyright. There's no "federal preemption" here that says the states have to follow the fed's lead on copyright.

True. But what the federal government hasn't or can't do, the states are starting to do. Seven states (Utah, Illinois, Texas, Oregon, Colorado, Georgia , Wyoming) have already passed mug shot publication laws. Other states have introduced bills or are considering them.

Here is a link to the National Conference of State Legislatures site, from 8/21/2014, on the laws and bills to date on mug shots and booking photos: http://www.ncsl.org/research/telecommunications-and-information-technology/mug-shots-and-booking-photo-websites.aspx

And here are a couple of additional links with additional information on the problems and some solutions.

From the Minnesota Bar Association: http://mnbenchbar.com/2014/09/the-digital-scarlet-letter/

From the Transparency Project of Georgia: http://transparencyprojectofgeorgia.com/tag/open-records/

Most states are not going the copyright route when it comes to mug shots.