Photography, the Law and Privacy, Again | DSLRBlog:

A New York court ruled this week that a photographer who took pictures of subjects on the street without their knowledge and then made hundreds of thousands of dollars selling those images did not have to get the permission of his subjects because the intention of the work was art, not commerce. The ruling reaffirms that people in public spaces cannot assume any privacy privilege, even if, as in this case, the subject was an orthodox jew, who regard portraits as graven images and disgraces the man in his community.

Still, a safe rule of thumb is 'if you want to sell the photo, get a model release'.

I do find it interesting, the distinction between the intention to make a work of art (and then sell it), and the intention to make a word of 'commerce'. I'd have assumed that if you intended to sell the photo, that the intention was commerce. It may be art as well, but it's still commercial. Of course, I'm not a lawyer, let alone a judge - what do I know?