NY state - caselaw defining online commercial use?

I've read many threads and had several pm conversations regarding online display of photographs and model releases.

I'm curious what makes an image displayed on a website considered commercial in they eyes of the NY state courts? In reading the NY state civil rights law, its obvious online usage was not around at the time it was written.

Most concur that the sale of prints does not require a model release. Many say that blogs do not require model released. Obviously, people post photos on Facebook pages by the millions daily, but what if it is your business page?

I would like to see either some caselaw, or valid state/legal information that defines commercial use.

For instance - say you have a PHOTOGRAPHY website, and the initial (index) page has a changing gallery of various images you've taken. Is that commercial use? What about thecustomer galleries where clients order prints? Typically a blog is part of a photographers main website, and the main intent behind blogs is to gain exposure and grow the business, yet the use is editorial? I guess I'm having a hard time drawing that line between commercial use on a website, since the purpose of a website is to get business, at the same time it is ALSO to display your work. So one argument could be its commercial because the objective of the website is to further your business, and the flip argument is basically, without someones photo and a testimonial, or an obvious link ad, its to display examples of work.

Anyone care to chime in? Perhaps it is determined by what else is on the page? For instance is a senior photo in a "seniors" gallery different than the same photo appearing on the "senior portrait" price page?

This is specific to photography websites with an initial gallery, customer galleries, and additional pages defining prices etc.

BTW - this is for conversation and to maybe read some caselaw others have discovered. No need for the typical "only your attorney can answer this question".

I'm more looking for peoples experiences, research, and possibly personal experience dealing with this sort of thing.

Here is a blog one

http://www.blogher.com …r-blog-my-story?page=full

Good read, but that is geared more toward copyright infringement vs. Commercial use and model releases. Thanks for the info!

Have you read the actual law for yourself? NY law is one that explicitly permits photographers to display images within their studios or in there portfolios without releases--but must remove them if the subject objects. The law was written in the pre-digital age, so it's yet to be proven in court whether "web portfolios" fall under the permission.

However, you can also read up on the subject. One good book is "The Photographer's Survival Manual" written by a NY lawyer extremely experienced in IP law, Ed Greenberg (with Jack Reznicki, an equally experienced NY-based commercial photographer).

In their chapter on model releases, they basically say you need one all the time. Even with the editorial/artistic loophole, the court may require you to prove by your past work that you have a track record as an established editorial or art photographer. If your website solicts for business anywhere on the site, any image used anywhere on the site is likely to be considered "commercial use."

Now, Greenberg does not always cite particular cases. From interviews I've seen with him, a lot of his advice is based on how he would take a case to court and drain a defendent dry (if the defendent refused to accept a settlement). But I consider that warning enough.

Thanks - I will check it out!

Read this article (it's NY based), and leave comments after it if you have additional questions. Only a lawyer can give you what you're looking for. Not anonymous people on forums.

Under What Circumstances Can Your Image Be Displayed Without Your Consent? The RIght of Privacy in New York

There are some further restrictions on even newspaper publication of images, however. If a private person (non-celebrity) is portrayed in a humiliating light, action can be taken against a newspaper regardless of "reasonably relating" to an article. For instance, if a newspaper wrote a story about kids ditching school to hang out in the mall and showed a photo of some kids hanging out in the mall as an illustration, they had better be prepared to prove that those kids were indeed ditching school and hanging out in the mall at the time that photograph was taken.

Moreover, a newspaper can be held culpable of creating "undue publicity" even if those kids were ditching school at the time the photo was taken...but it doesn't appear in print until a year later.