When photographers take photos of people, they must be careful to not “invade their privacy.” See my September 15, 2005 blog for more information. After the photo is taken, however, the photographer should be concerned about the person’s “rights of publicity.” You violate a person’s right of publicity when you take or use without permission a person’s photo for your own use or benefit. Editorial use of a photo is not considered a use of the person’s image for your own use or benefit. Commercial use is different. Commercial use clearly benefits the photographer, so you need the person’s consent to use their image. This normally is documented by a model release. But how do you tell the difference in the uses?
Editorial use of a photograph is found in a newsworthy item. In those cases, the person’s right in the use of his image must be evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment, freedom of the press, interest and is broadly construed. Courts traditionally have defined public interest or newsworthiness in liberal and far reaching terms. It is not limited to dissemination of news in the sense of current events, but extends far beyond that to include all types of factual, educational and historical data, or even entertainment and amusement, concerning interesting phases of human activity in general.
Commercial use of a photograph usually occurs when the picture of the person has been used purely for “advertising purposes.” While the photograph of a person may be used for something that is sold for profit, such as in a book or a print, that is not the test for a commercial use. Instead, using a picture of a person without consent gives rise to a claim for violating the person’s right of publicity only when it injures the economic interests of the person due to commercial exploitation.
In sum, if someone looking at a photograph would think that the person in it is promoting or endorsing a commercial product affiliated with the photograph, then the use is commercial. But since it sometimes is difficult to know if the use will be considered commercial or editorial, it’s always a safer to get the model release.
Take my advice; get professional help.