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Q: 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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A: 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 usual conditions of advertising photography. 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 80s 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 Arringtons name was not used, and the photograph was published for illustrative, not commercial purposes. The law subsequently was amended to protect 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).

Rohn Engh is director of PhotoSource International and publisher of PhotoStockNotes. Pine Lake Farm, 1910 35th Road, Osceola, WI 54020 USA. Telephone: 1 800 624 0266 Fax: 1 715 248 7394. Web site: http://www.photosource.com/products

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