A. With almost every cell phone doubling as a camera, the question of whether you can take a stranger’s photograph without his or her consent is frequently asked. The answer is that if people are in a public place, you can take their picture. (This is true for the United States, but may not be true in other countries where individuals have greater privacy rights.)

The First Amendment of the U.S. Constitution gives citizens and the press the right to freely speak and publish; this broad freedom includes images as well as words. Individuals do have some privacy rights, but these rights are typically limited to private places, like a person’s home. In a court of law, the public’s right to know usually outweighs an individual’s right to privacy—this is why the paparazzi hide in bushes in the hopes of capturing a celebrity stepping out of a nightclub or restaurant.

Of course, taking a photograph is one thing, but most of us want to share our pictures, whether that involves uploading a photograph to MySpace or publishing it in a magazine or newspaper. Ultimately, the right to publish a photograph depends on how the photograph is used: Does it illustrate a truthful article involving a political or social event? Or does it help sell a product or service, like Nike athletic wear?

Again, the First Amendment permits the broad dissemination of photographs as long as the use is considered editorial and not commercial. The right to privacy does not prohibit the publication of images that are of public concern. This privilege is very broad and goes beyond the publication of historically significant events (eg. the New York transit strike), political happenings (eg. the war in Iraq) and social events (eg. a Madonna concert) to what could be described as merely interesting human activity (eg. Paris Hilton eating lunch). The courts do not hold the public to a high standard when considering what is “of interest.” If the picture is used to illustrate an article of public interest, there are only two conditions in which the publisher can be liable: if the picture bears no relationship to the article and/or if the article is really an advertisement in disguise.

Consent, typically in the form of a model release, is required when the use of the photograph falls into the commercial category. Many states require the model release to be in writing and signed by the person depicted. If the person is a minor, the parent or guardian must sign the release. If you want to use a photograph for commercial use, you need a broad release that permits you to use the photograph without further consent, for any purpose, without approval over the use. Without a valid release, you may violate what is known as a person’s right to privacy by appropriation or the right of publicity. This involves the unauthorized use of a person’s photograph, name, likeness or voice for commercial purposes or purpose of trade. As the right to privacy or publicity varies by state, you should check what is required in your state. Some states, such as New York, do not require consideration—a payment, whether it’s a dollar or a copy of the print—for a release to be valid, but other states might. A sample release is available at this Web site: http://www.pdnedu.com/pdf/IsitLegalModelRelease.pdf.

Nancy Wolff specializes in intellectual property law and new media law, and has been an adjunct professor at Benjamin N. Cardozo School of Law teaching mass media and entertainment law.