[The unauthorized publication of a photo of a non-celebrity is] "the price every person must be prepared to pay for a society in which information and opinion flow freely." -- Arrington v New York Times, 1982.
In 2006, a New York trial court issued a ruling in a case involving one of his photographs. One of diCorcia's New York random subjects was Ermo Nussenzweig, an Orthodox Jew who objected on religious grounds to diCorcia's publishing in an artistic exhibition a photograph taken of him without his permission. The photo's subject argued that his privacy and religious rights had been violated by both the taking and publishing of the photograph of him. The judge dismissed the lawsuit, finding that the photograph taken of Nussenzweig on a street is art - not commerce (even though the photographer sold 10 prints of it at $20,000 to $30,000 each) - and therefore is protected by the First Amendment. The judge ruled that New York courts have "recognized that art can be sold, at least in limited editions, and still retain its artistic character (...) First Amendment protection of art is not limited to only starving artists. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes."
Nussenzweig v DiCorcia
I was a little upset at first to hear that an artist would push ahead with a lawsuit brought out of personal duress or religious objection, but as I was searching for more information on the subject of Hassidic Jews and personal images or photographs I actually found more links to stock photos of this religious sect than I did on religious laws limiting them. Now I'm just kind of impressed that a court actually ruled in favor of an artist (after reading about how many blatant copyright issues are dismissed). Maybe it's just indicative of this new era of 'Patriot Acts' where personal privacy is practically nil. Anyway, I guess it's good to know that if I chose to step out of the realm of staged-realism, I would have legal precedence backing me up. For now though I think I'll stick to models and try not to step on any toes.