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The copyright is not with the person on the photo, it is with the photographer. Which in this case is the police department.
The only rights that Trump had were the rights on his own picture. Which is hard to control as a celebrity (public interest and such), and which he basically waived as he had those merch sold himself.
I get that the copyright is traditionally held by the photographer and not the subject. I guess the issue I have with it is how Trump (or anyone charged with a crime) is legally compelled to allow it to be created.
Also, if we assume Fulton County Jail owns the copyright, could they sell mugshot merch? If yes, that's horrifically dystopian. If no, are they entitled to claw back any money made from the sale of mugshot merch?
Personally, I would like to live in the world where jails can't profit off the mugshots of their inmates.
They could sell mugshot merch from the copyright perspective, but there would be a load of other issues that would prevent them from doing so.
But technically, they could sue whoever is responsible for selling them and could claw back profits and damages, as this was undeniably copyright infringement for large-scale commercial gain. Look at this: Up to five years and up to 250k per offense. And that's only the punishment. The damages are between 750 and 30k, 150k if it was "willful". Plus all the usual stuff like paying lawyers and courts. The Sheriff's Office down there could buy their own donut factory from the proceedings...
It's public record anyone can use it so long as they don't do so for profit. Ie. He can use the mugshot all he wants he just can't make an profit from it.
When you run for office (of any kind) you become a "public figure" and as a result the rights to your likeness are considerably diminished. If you win your rights to control how your likeness is used are even further diminished. Furthermore, if you run for a Federal office and get elected your rights are even more diminished.
Then there's an even lower level where you basically lose all rights to control your likeness: When you become President. Presidents are special from a likeness perspective because as long as they live they are, in fact, President or former President and as such cannot make claim whatsoever that their likeness is copyrighted because while they were in office their likeness became public domain (all works of the US government are public domain unless classified or given special exception).
So the day the White House updated it's website with an image of Trump any copyright claim to his likeness went out the window.