Right now I'm having a hard time figuring out where editorial use ends and commercial use begins.
Let's say I'm displaying photos on my website. I go to many events (some public, some for my school), and the photos I take get posted online. I also use my SmugMug site as a proofing system for portraits, and will password-protect a gallery when it's requested. Here's where I'm having some trouble understanding things. In my mind, I see these photos as being editorial - they certainly aren't being sold or used to advertise anything; they're just there for people to see. However, I can see the argument that these photos are, in fact, being used to promote something: me and my photography. Legally, how well does this argument hold up?
One teacher at my school is an amateur photographer, and he just recently saw my website. He complimemented me on my photos, then quickly told me that he was concerned that I don't have any model releases. I told him that I felt that he was incorrect because just publishing photos online does not require a release, but he insisted that I was wrong. If anybody would care to take a minute or two to take a glance at my website, I'd appreciate any thoughts or comments on that. My website is: www.jbphotography.smugmug.com.
I was thinking, though, that if that's concidered commercial use, then shouldn't any use where photo credit is given be considered commercial? i.e., a photo in a newspaper doesn't require a model release, but if photo credit is given, couldn't you argue that the photo is technically promoting the photographer?
What about an online portfolio? My online "portolio" is www.flickr.com/photos/jasonboulanger (and yes, I know this isn't the most professional approach, but for right now, it's working fine). I would say that my smugmug account is meant more for sharing photos, whereas my flickr account is just to display my better photos, thus promoting myself and my photography service. Is this commercial use?
Sorry for the long post, but what I was told today got me thinking. I'm not too worried though, as I figure that if I was going to get any complaints, I would have gotten them long ago. I do plan on getting releases in the future where I think it is necessary, but for the time being I think I'm OK. But let's say somebody did have a problem; would they be required to send a Cease and Desist letter before filing a lawsuit?