A new publication in Lincoln, Neb., milks mug shots for humor. But a teenager whose arrest photo appeared in Cuffed doesn't see the funny side of it and has sued the publisher for misappropriating his image.

The case could be closely watched by other publications around the country -– both print and online –- that have capitalized on the public's morbid interest in mug shots. “Mug-shot galleries are increasingly popular features on newspaper websites,” Time magazine recently noted, with big dailies such as New York's Newsday and the Chicago Tribune catching onto the trend.

Zachary Krull, 19, alleges Cuffed is liable for invading his privacy under a Nebraska publicity rights law that applies to the unauthorized use of a person's “name, picture, portrait, or personality for advertising or commercial purposes.” The monthly newspaper published his mug shot from a Jan. 11, 2010 arrest in its February edition.

Nebraska law “forbids this type of publication of Plaintiff's name and picture,” says the lawsuit, which names Cuffed Paper, L.L.C., and its registered agent, Dustin Hitchler, as defendants.

Cuffed, which launched in December, sells for $1 in 20 locations around Lincoln. In a statement attributed to Hitchler in a Lincoln Journal Star article published Feb. 21 –- four days before Krull filed the suit –- he said the monthly paper “is a business endeavor and for entertainment purposes only.”

Other mug-shot publishers have made clear that their purpose is to inform the community about crime. Nevertheless, Cuffed should still enjoy the full protections of the First Amendment because the paper –- even if sold for profit -– is noncommercial speech.

According to the suit, Hitchler has arranged for the Lancaster County, Neb., jail to e-mail mug shots to him every month. The shot of Krull –- a freshman at the University of Nebraska-Lincoln who was arrested for failing to appear in court on a charge of driving with a suspended license -– was among hundreds selected for the February issue, appearing in Cuffed's “Lost My Comb” section of arrestees experiencing bad hair days.

Other sections include “Say Cheese” (mug shots with smiles), “Bumps and Bruises” (facial lacerations) and “Doin' and Dealin'” (drug-related arrests).

“[B]ased upon the paper[']s own statements and based upon the layout of the paper 'Cuffed'[,] it is for entertainment by making fun of individuals in their mugshots and ... is a commercial endeavor,” Krull alleges. The suit seeks an injunction on sales of Cuffed and unspecified damages for Krull's emotional distress.

A Louisiana judge commented a few years ago on the “stigmatizing effect” of mug shots. “As in the cliche, a picture is worth a thousand words,” U.S. District Judge Helen G. Berrigan said in finding “[i]t would be reasonable for a criminal defendant ... to object to the public disclosure of his or her mug shot. “ Times Picayune Publishing Corp. v. U.S., 37 F.Supp.2d 472 (1999).

Krull, though, isn't objecting so much to the public disclosure of his photo but to its commercial exploitation under the Nebraska publicity rights law. He can only prevail by showing that Cuffed is, in fact, commercial speech.

Hitchler's purported statement that the paper is “a business endeavor” simply isn't enough to make him liable. The distinction between commercial and noncommercial speech can be blurry but courts have generally classified a publication as commercial when it is for advertising or promotional purposes.

In Fanelle v. LoJack Corp., 79 F.Supp.2d 558 (2000), a Pennsylvania judge ruled that a maker of vehicle security systems could be sued for publishing an arrestee's mug shot in a promotional brochure. The allegation that LoJack “use[d] Plaintiff's name and likeness to advertise [LoJack's] business product ... is sufficient to state a claim for appropriation,” U.S. District Judge Lowell A. Reed concluded.

But however crass it may be, Cuffed follows the same humorous template as other mug-shot publishers including The Smoking Gun. And it clearly communicates information and does not advertise or promote a product.

By Matthew Heller
3/3/10