It is axiomatic in the photography industry that a model release is not required if the resulting use of a person’s likeness or image is editorial in nature, such as to accompany a newsworthy story. The belief stems from judicial decisions interpreting the various state privacy statutes, which generally prohibit the use of a person’s likeness or image for purposes of advertising or trade without the model’s written consent.

In a recent federal case brought in the Southern District of New York, a model, Jamie Messenger, sued the publishing giant Gruner & Jahr USA for invasion of her privacy for publishing photos of her in YM Magazine. The Judge had dismissed other claims based upon negligence and libel but permitted the invasion of privacy claim to go to the jury for decision on the theory that the photos were used in a way that could have been misleading. The jury then found that, in fact, the photos had been used in a misleading manner.

The court made a distinction between the "newsworthiness" of a story which exempts the use from the statutory requirement of a written model release, and a misleading use, which is by definition, not newsworthy. It is puzzling, however, how use of a photo in an admittedly newsworthy magazine, where the photo was also found to be reasonably related to the story, can be an invasion of privacy because it was misleading, while at the same time the libel claim based on the same facts was dismissed. Both sides have indicated an intent to appeal.

In any event, the lesson is clear; one never knows what tomorrow will bring, so be aware of how your images will be used before granting consent.