Having done more research on the subject than I care to admit, part of the lack of clarity among the websites I have read, is that the law is poorly worded. (Now why would that be surprising, since lawyers want every legal document to be ambiguous, since that generates more court cases.)
Additionally, there is not uniformity on the law among the states.
I did find another website that was kind enough to CLEARLY word the law. (in at least on state) That information is below.
I did find a New York case that overruled a precedent from a prior court case that had been used by courts for about one hundred years. The recent cases ruled that book covers are considered promotional, thus subject to the 'commercial' uses of photos laws.
Interestingly, a similar case won by Amazon, ruled that using a book cover photo on the Amazon website to display a book, was not any different than a book cover in a book store, thus it was NOT promotional, and thus NOT 'commercial', and thus NOT subject to a model release, that IS required when an image is used to promote, or advertise a product, service, or idea.
Front Page News
Book covers…Do They Require A Release?
Advance Notes: When can a picture be published without requiring a person’s consent? A one-sentence answer would be, "when it’s not being used to advertise or endorse a product or other commercial entity.” If the picture is informing and educating the public, such as in a texbook, newspaper, TV documentary, etc. it generally is designated an editorial photo, which does not require a model release. But not all is conveniently clear and black and white when it comes to the requirement of model releases. Consider just one subject area, Book covers:
Photographer Question: “I have a pretty good understanding of the model/property release issue with editorial stock, but I do have a question. If a photo is used for a magazine/book cover, wouldn't that be considered promotional and require a model/property release?”
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PhotoSource International Answer: Book and magazine covers have a way of becoming “quasi advertisements,” when they do double-duty of “hyping” the book or magazine when placed on a newsstand or in a catalog or even in an ad in, say, The New Yorker magazine.
The courts, however, have almost always considered book and magazine covers as editorial in nature, and therefore not subject to the regulations that are applied to advertising photography.
The same has generally been true for photos in gallery shows or exhibits, where ‘editorial-type’ photos, taken in public places, are exhibited. The courts so far have ruled that even if such photos were sold by the photographer, the displays or exhibits were regarded as fine art use, not commercial use. While the pictures weren’t used as ‘editorial use,’ they also were not used to advertise or endorse a product.
One of the earliest cases addressing this was back in the early part of the last century, when a hod carrier on the New York waterfront, sued a local magazine for using his picture on their front cover. The magazine won the suit, and the case is often used as the example (precedent) for similar suits.
The famous Arrington case in the early ‘80’s is another significant case concerning this question. It points up how in some cases the use of a picture might be editorial in nature, but might be embarrassing to the person being photographed. Mr. Arrington, a black man, sued the New York Times for publishing a photograph of him. The Court judged that the photograph, taken in a public place, and used to illustrate an article on the upward mobility of blacks, was not considered detrimental, because Arrington’s name was not used, and the photograph was published for illustrative, not commercial purposes. The law subsequently was amended to include protection for freelancers supplying photographs for use as news. (1983) You can look up this case at: Arrington v. New York Times, 433 N.Y.S.2d 164 (N.Y. App. Div. 1980), modified, 55 N.Y.2d 433 (1982), cert. denied, 459 U.S. 1146 (1983).