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Black Star Rising received the following question from a reader, Manuel Pecina of Studio Gonzo in Dallas:

I have recently been asked to produce model releases for an art exhibition at a local university. The work being displayed was shot during a theater play and is documentary. Do I need model releases for this work? There will be no sales.

Thanks for your question, Manuel.

When photographers take photos of people, they must be careful to not invade their privacy. Generally, when people are in public areas, the people have no expectation of privacy so the photographer does not violate anyone’s right of privacy when taking their photo.

After the photo is taken, however, the photographer should be con­cerned with the person’s right of publicity. A photographer violates a person’s right of publicity when, without permission, the photographer uses a photo of a person for the photographer’s own benefit, sometimes referred to as “commercial” use as opposed to an “editorial” use.

What Makes a Photo Newsworthy?

The use of a photograph is considered to be editorial when it is newsworthy. “Newsworthiness” is a First Amendment interest and is broadly construed. Courts traditionally have defined newswor­thiness in liberal and far-reaching terms, extending it to include all types of factual, educational and historical data, including en­tertainment, amusement, and other interesting phases of human activity in general including fine art — such as the photographs displayed at a gallery.

Documenting events by sharing photos of activities such as a neighborhood party generally are considered to be editorial uses of photographs. For example, the photo company doesn’t need your permission to sell prints of you while you are white-water rafting, riding the roller coaster, or at the prom.

Defining Commercial Use

Commercial use of a photograph usually occurs when the picture of the person has been used for advertising, endorsement, or trade purposes. While the photograph of a per­son may be used for something that is sold for profit, such as for use in a book or as a photographic print, selling the photo is not the test for a commercial usage. But when a person’s likeness or name is used in a commercial manner, the photographer/publisher of the photograph needs the person’s permission, usually documented by a model release.

Even when a photo is used editorially, the person in the photo (or the child’s parent) can get upset when you show photos without the person’s permission. Especially in the post 9/11 era, people get spooked by photographers. Photographers must decide for themselves whether they want to risk the potential to anger others. But photographers shouldn’t be intimidated from exercising their rights.

In sum, the specific laws related to rights of privacy/rights of publicity are dictated by each state and/or country. Check with your attorney for your specific circumstances.