Websites are sued for charging to remove mug shots

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Everyone might get 15 minutes of fame, but infamy appears to have a longer -- and more costly -- shelf life.

Across the country, people who have been arrested find themselves having to pay money to get mug shots wiped from the eternal glare of cyberspace.

Toledo lawyer Scott A. Ciolek believes that practice is wrong and has sued in Ohio five mug shot websites to press his point.

Pittsburgh, he said last week, is up next.

He plans to file suit here early next year and said Pennsylvania and Ohio have similar laws governing the use of one's image.

Charging fees to remove mug shots "is tantamount to extortion," Mr. Ciolek said. "They're not allowed to use the image of these inmates or these people to sell the service of removing these images."

Mr. Ciolek last week filed a class-action suit in Lucas County Common Pleas Court on behalf of more than 259,000 people. That, he said, represents the number of people in Ohio of whom a defendant claimed to have photographs over the past four years.

The defendants are: JustMugshots.com; BustedMugshots.com; Mugshotsonline.com; FindMugshots.com; and MugRemove.com.

The suit claims that BustedMugshots.com charges about $178 for "rush removal" of booking photos from its website.

A spokeswoman for the website said the company had no comment on pending litigation.

"The real issue of the lawsuit is the money issue. That's why I'm suing them," Mr. Ciolek said. "It's about taking the profitability out of this business."

He is alleging both unjust enrichment and violation of Ohio's right-of-publicity law.

In Ohio, the right of publicity "protects against unwarranted appropriation or exploitation of one's personality," according to the Citizen Media Law Project. Among the allowed uses is publication of an image for news purposes.

Mr. Ciolek argues that mug shots of nobodies put willy-nilly online to reside in cyberspace perpetuity -- sometimes in connection with minor transgressions that would otherwise remain largely hidden -- do not have inherent news value. And the websites are not fulfilling a news function by publishing the pictures and then asking for money for their removal, he added.

Jonathan Faber, a lawyer in Indianapolis who administers the Right of Publicity blog and has a company that represents the licensing of sports stars' images (including Josh Gibson of the Homestead Grays), said that while a person might have difficulty suing a newspaper over use of an image, the context changes if the image is being slapped on a T-shirt, for instance, and marketed as a money-making venture.

T-shirt sales might not be all that different from selling back a person's image -- marketing its removal rather than its distribution.

"On some level, it's an ingenious setup. But, unfortunately, it is based on embarrassment of people, whatever their infraction was," Mr. Faber said.

"When a private [corporation] is accumulating this content and posting it and their primary business model is to sell the business of removing it, that sounds to me like a commercial purpose."

One question that might arise during litigation is whether the websites' primary purpose is making money off picture removal.

BustedMugshots, for instance, says, "Our mission is to provide transparency in the criminal justice system to allow citizens to be aware, informed and proactive in the ongoing fight against crime."

Is that true?

"They may say that, but I'm going to look at your balance sheet in discovery and see you made $175,000 last year and that's entirely from these removal fees," Mr. Faber said, speaking hypothetically. "You wouldn't want anyone to be removed if you're providing a public service."

"It's deplorable because it prevents people from getting jobs or getting rentals. It keeps people in poverty," Mr. Ciolek said.

Two of the defendants in the Toledo lawsuit are named. One, Phillip L. Kaplan, 34, is unhappy that the first picture turned up in a search for his name on Google Images is a mug shot in which he wears a goofy, eyes-closed grin.

Mr. Kaplan said that during that booking photo, he was trying to make light of what he considered a bogus arrest in June 2011 for failure to disperse from a block party in his neighborhood. He said the charge was dismissed nearly a year later.

"I wasn't real happy about the fact that my picture was up there," he said. "Here's a guy who's arrested for failure to disperse looking like a maniac."

Mr. Kaplan, a freelance graphic designer, said he has a gut feeling that his mug shot has scared away prospective employers.

Mr. Ciolek acknowledges that mug shots often are available online through law enforcement agencies. However, he said, those agencies are not using the pictures to make money.

"I'm not trying to remove all the mug shots from online," Mr. Ciolek said. "I want to take the profitability out of the mug shot websites. I want to spur on a lot more lawsuits around the country."

Mr. Faber believes the suit might gain some traction.

"I think it's a very interesting case. It seems to me a novel application of the right of publicity," he said. "I think it does have teeth."

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Jonathan D. Silver: jsilver@post-gazette.com or 412-263-1962.


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