Photo columnists, unaware of their First Amendment Rights, have been fanning the fires of this hotly debated question for decades. A wall of mythology has built up around the subject, and I'll make the first move to break it down for you. To give you a simplistic answer: No, you do not need a model release.
You may now get up off the floor and sit back down. I'll ask you to be open to a re-programming process. First, a few questions: Have you ever seen a newspaper photographer ask for a model release? Did the video photographer in the Rodney King case ask the policemen or Mr. King for a model release?
If your photo is informing or educating the public, you do not need a model release.
And this is where the confusion comes in. Here at PhotoSource International we encourage you to follow the trail of the new generation of new media. Its emphasis is the publication trade: magazines, books, and electronic media. About a million dollars a day are spent in this category of stock photography, whose essential use is to INFORM and to EDUCATE. Photobuyers in this arena rarely require a model release, unless the photo is so sensitive that it might compromise a person in some way. Short of highly sensitive areas such as drug abuse, sex education, mental retardation, you won't find your buyers asking you for a model release.
"How and why was I under the impression that model releases are always required?" you ask.
Most of the teaching and training in the USA for working photographers, is slanted to COMMERCIAL photography, where you always need a model release.
As stock photography grew and became more prevalent, commercial photographers expanded into media photography, and brought along with them the rules for commercial photography: i.e. you need a model release. Since most classic stock photography is used for commercial purposes, these photographers are right, you do need a model release if you are photographing in the commercial sector, where usage centers on promotion, advertising, and endorsement.
But you, as an editorial stock photographer informing, educating, and entertaining the public, operating a business in a free enterprise society - you have a powerful law on your side, namely the First Amendment of the U.S. Constitution. The First Amendment in effect says you can freely photograph in public as long as you are not breaking any local laws, such as trespassing.
Enter the publishing world. Large publishing houses, which spend $50,000 to $150,000 per month for photography, are vigilant about protecting their First Amendment Rights, and in so doing, they protect your First Amendment Rights. If Houghton Mifflin, Harcourt Brace, etc. were to require model releases for the pictures they use, they would soon go out of business, because editorial photographers would not put up with the chore of getting model releases for slews of editorial, "non-posed" pictures.
Most of the horror stories concerning model releases that you read about have had to do with commercial photography (for ads and concerning sales and products for purchase), where YES, you do need a model release. Not so in the book and magazine illustration field.
The million-dollar-a-day book and magazine publishing houses fill swivel chairs at long oak tables with legal advisors, who remain steadfast in protecting their clients' side of the First Amendment, which is that when you are informing and educating, a model release is not necessary. The only exceptions would be those rare cases involving highly sensitive subjects such as sex education, drug abuse, certain medical issues, and religion.
So then, this opens the window and lets some fresh air in on this issue. If you've been relinquishing your First Amendment rights up to this point, I hope this article helps you regain them. Go out and photograph freely in public, in the style of Margaret Bourke-White, Dorothea Lange, and Arthur Rothstein.
It would be a bureaucrat's dream for officials to be able to say, "You can't photograph in my school, my police precinct, my park." In reality, these people (school principals, policemen, etc) are your civil servants. Your taxes pay for their buildings, equipment, and salaries. As long as you are not interrupting their normal course of duties you can photograph them.
There have been lawsuits, yes. But if you examine each case, the plaintiff always goes after the publisher with deep pockets, not the photographer. We're back to the long oak table with swivel chairs filled with experts. And the plaintiff rarely wins.
The bottom line is that you should break through the wall of mythology that for years has surrounded this model release question, and go out and photograph freely in public. The world will be a better place as a result of your efforts.