President Trump’s mugshot, an early contender for image of the year — or decade, or more — is doubling as a mint for the former president, but is he entitled to reap the rewards of his famous face? 

That question is surfacing as Mr. Trump’s campaign puts his visage on everything from bumper stickers to coolers to T-shirts. The campaign has announced that it has raised more than $7 million since Mr. Trump’s arraignment. The image is often accompanied by a “NEVER SURRENDER” caption.

Now, though, the lucrative photograph could be yet another source of legal angst for Mr. Trump, known in the Fulton County Jail as Inmate No. P01135809. Generally, works created by federal government employees within the course of their official duties are in the public domain. 

While federal law — the Copyright Act — ordains that “copyright protection” is “not available for any work of the United States Government,” state governments are not blocked from claiming copyright protection for works created by employees. Such a suit would likely have to come from the sheriff’s office, which could ask a court to force Mr. Trump to disgorge those millions. 

A law review article published last year at the University of Georgia, “Innocent Until Proven Posted: Regulating Online Mugshot Publication With Intellectual Property Law,“ explains that “in the context of photographs taken by law enforcement during the booking process, the author of the mugshot photograph is the law enforcement agency.” The article’s author, Amanda Cheek, notes that a mugshot “predates the individual’s day in court or the determination of guilt.” 

Mr. Trump, though, is not the only one using the mugshot for financial gain. A search on an online marketplace, Etsy, yields more than 5,000 items with the image, and other sellers, like Barstool Sports, have also slapped Mr. Trump’s punim on all manner of tchotchkes. 

One motivation for Fulton County to claw back some funds could be a $4 million settlement approved this week by the county’s commissioners to be paid to the family members of an inmate allegedly masticated by insects at the Fulton County Jail. Three years ago, in the wake of the murder of George Floyd, the county rejected $21 million in federal funds for the jail. 

One of Mr. Trump’s advisers, Chris LaCivita, posted to X, formerly known as Twitter, “If you are a campaign, PAC, scammer and you try raising money off the mugshot of @realDonaldTrump and you have not received prior permission … WE ARE COMING AFTER YOU you will NOT SCAM DONORS.”

While Mr. Trump’s ability to back up that threat could turn out to be limited to challenges to his lack of ownership over his image, his attorneys could pursue a litigation strategy rooted in the so-called right to privacy rather than one reliant on an ownership claim. A law review article by that name penned by the future Justice Louis Brandeis and Samuel Warren II postulated that the  “unauthorized circulation of portraits” should be prohibited. 

The existence of a constitutional right to privacy rooted in the Fourth and 14th Amendments has been hotly debated — the Supreme Court in Roe v. Wade found a “right of personal privacy,” a discovery with an uncertain future after that case was reversed in Dobbs v. Jackson Women’s Health.  

Brandeis and Warren’s suggestion that there be a pathway to claim injury for misuse of one’s image was rooted in their aversion to the rise of newspaper publicity — and photographs — in the 19th century. In 1890, they wrote that “instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life.”  

The professors’ call to “protect the privacy of private life” inspired state laws granting individuals recourse for unwanted publicity. In 1982, Georgia’s supreme court ruled in Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc. that the “appropriation of another’s name and likeness, whether such likeness be a photograph or sculpture, without consent and for financial gain of the appropriator is a tort in Georgia.”

If Mr. Trump were to bring an invasion of privacy suit against third party sellers of merchandise adorned with his mugshot, it would likely have to be in his personal capacity, rather than through his campaign. That case could be complicated, though, by his own reliance on the indelible image.