The act of photographing vs. the use of the photograph
The law draws a sharp distinction between taking a photograph and publishing it. In the United States, you can generally photograph anything visible from a public place — people, buildings, events — without permission. The First Amendment protects the act of photographing matters of public interest, and no general "right not to be photographed" exists in American law. But the use of the photograph — particularly commercial use — triggers right of publicity, privacy, and sometimes copyright concerns that are separate from the act of capture.
Model releases and consent
A model release is a contract in which the subject of a photograph grants permission for the photograph to be used. For commercial use — advertising, product endorsement, stock photography sold for commercial purposes — a signed model release is essential. Without one, the subject has a right of publicity claim: they can sue for the unauthorized commercial use of their likeness. The release should specify: the scope of permitted uses, whether the release is perpetual or time-limited, whether the subject waives approval rights, and whether the subject is being compensated.
For editorial use — news reporting, documentary, fine art, editorial illustration — a model release is not legally required, though many publishers require one as a matter of policy. The editorial use of a person's image without consent is protected by the First Amendment when the image relates to a matter of public interest. But "public interest" has limits: a photograph of someone walking down the street, used to illustrate a story about addiction or crime with which they have no connection, can give rise to a false light invasion of privacy claim even in an editorial context.
Street photography and the First Amendment
Street photography occupies a legally protected but socially contested space. Photographing people in public places without consent is generally lawful in the United States. The photographer owns the copyright in the image. The subject has no right to prevent the photograph from being taken, and — if the use is editorial or artistic — no right to prevent its publication. This is not the case in many other countries: the EU's GDPR has been interpreted to require consent for street photography in some member states, and France and Germany have particularly strong personality-rights laws that can override editorial-use defenses.
The practical risk in street photography is not legal but commercial: a publisher, stock agency, or brand will not use an image of a recognizable person without a release, regardless of the legal permissibility. A street photograph with faces has limited commercial value unless the photographer can obtain retroactive releases, which is difficult and expensive.
Commercial vs. editorial use
Commercial use means the image is used to sell something — a product, a service, an idea — or to imply the subject's endorsement. Editorial use means the image illustrates a newsworthy or educational purpose. The line between them is not always bright. A photograph of a celebrity used on a magazine cover is editorial; the same photograph used in an advertisement for the magazine is commercial. A photograph of a street scene used in a fine art book is editorial; the same photograph used on a t-shirt sold for profit is commercial.
The consequences of misclassification are significant. Using a photograph commercially without a release exposes the user to statutory damages under some state right-of-publicity statutes (California's Civil Code § 3344 provides $750 or actual damages, whichever is greater) plus the possibility of punitive damages. Using a photograph editorially without a release carries far less risk, though it does not eliminate the possibility of a privacy or defamation claim if the use is misleading or harmful.
Property releases and building photography
Photographing private property from a public place is generally lawful. But using photographs of distinctive buildings for commercial purposes can trigger trademark or trade dress claims if the building is closely associated with a brand — the Transamerica Pyramid, the Empire State Building, the Guggenheim Museum. These buildings may be protected as trademarks, and commercial use of their images may require a property release. The same applies to copyrighted architectural works (buildings designed after December 1, 1990): photographing them from a public place is permitted by 17 U.S.C. § 120, but the scope of that permission for commercial reproduction is not fully settled.