Photographer’s Legal Rights
In response to my calendar, Cedric asked the question:
Just wondering, did you need to get a release form from the people in some of the shots or is that not necessary?
A very relevant question for those of us who take photos of people. Initially, I gave a short answer of “No. I didn’t, because I don’t need to.”; however, I deleted that comment, gave it some more thought, then did a bit of research to attempt to find the answer. Of course, I must state first and foremost that I am not a lawyer and this is not legal advise in any way. Further, this information is based on the laws of the United States as I, a layman, understand them. Don’t take my word for it, ask an attorney. 
OK, now that that stuff is out of the way. Here’s what I did. I looked into my Photographer’s Legal Guide that I purchased from Photo Attorney about two years ago. It’s very easy to read and is not filled with legal mumbo-jumbo.
Usage categories are split into two: Editorial and Commercial. Editorial content is protected under the First Amendment and, assuming that you got the photograph of a person in a public place where there was no expectation of privacy, such as on the street, you may use the photo as you wish without the person’s consent. An example that she gave was of using these types of photographs at gallery showings, perfectly legal.
There was, however, a lawsuit brought against a New York street photographer, Philip-Lorca diCorcia, in 2005. You can read about it here and a New York Times article about the same.. However, the various courts ruled in favor of the photographer. Score one for our side. The lower courts talked to both the statute of limitations for filing the suit as well as the photographer’s First Amendment Rights of freedom of speech and expression. The upper courts, upon appeal, only talked to the statute of limitations. At any rate, the entire lawsuit was dropped.
If you use a photograph for commercial reasons, then you need a model release. But, the tricky part is finding out what is commercial use. Commercial use is when the photograph has been used for advertising purposes, such as on a tee-shirt or coffee mug (given examples). Ms. Wright says that if someone looking at a photograph would think that the person in it is promoting or endorsing a product affiliated with the photograph, then its use is commercial. This seems to be the acid test. However, including someone’s photo inside of a book, or even on the cover, does not constitute advertising or commercial use. It is indeed sticky and still a bit unclear. People can still file a lawsuit and, even though you might win, it could cost a pretty penny.
In the end, Carolyn E. Wright, Esq., the author of the legal guide says that anytime that you take a photograph of someone, it’s a good idea to get a model release; even if, legally, you might not need it, it’s good to have it.
Sigh … trees are so much easier! Well, Cedric, that’s the long answer.
Some sources say you should have a model release for a book cover photo, since the cover is, in effect, trying to sell the book.
See, e.g., ASMP’s Frequently asked questions about releases (“If you license the picture for use in a book, you should be OK without any releases as long as you don’t allow the publisher to put the photo on the cover of the book or use it in promotional materials”) and their intro page about property and model releases (although it doesn’t specifically mention book covers).
[Reply]
@Gary: There was a case, Almeida vs Amazon where a persons face was used on the cover, without her permission, but it was allowed, according the courts in Florida. I think that the issue here was that she was on the cover of the book, but that she wanted compensation from Amazon because they displayed the book in order to help sell it.
Property releases are, I think, ‘just in case’ or as ASMP says, future-proofing. There’s no law against taking photos of a public place, like a house, or using it, but … I don’t like this thought. It’s giving up rights out of fear, not because there is a legal reason to do it. The old proverbial slippery slope.
[Reply]
I enjoyed your article.
It was well written and informative. However, in your last paragraph you say that even if the release isn’t needed, the photographer can still be sued and spend a lot of money to win.
Agreed…the bad news is, even WITH a release there are people in this litigious world who will sue anyway – just hoping for a quick settlement to go away.
Dan
[Reply]
Thanks Paul this is all useful info. A quick bit of research in Australian laws indicates that the rules are similar here. What I’m thinking is that while the rules seem to be fairly clear there is enough grey to make it messy if someone wanted to play hardball. Like you say, trees are much easier
[Reply]
It will remain unclear until there are definitive rulings on the nuances. There aren’t rulings because those worth pursuing (financially) will also be covering their collective backsides. That is both the joy and frustration of common law: there is freedom to act but it also means rulings are needed for every permutation, rather than them being enacted up front.
[Reply]
I am so glad I don’t need to worry about this very often.
[Reply]
@Mark: I don’t know. Those bears may come after you and want payment!
[Reply]
All this is fine, but with your gift for gab, you strike up friendship with all the people on the street and avoid any problems in the first place, right?
[Reply]
I thought you might be interested in this article by Thomas Hawk.
[Reply]