Question
I have a number of photographs from a recent client shoot that they don't wish to use, could these be sold by myself as stock photography? For that matter, would it be considered to be ethical to do so?
Answer
As for the legal issues, the crux of the matter is the model release. All of the reputable micro-stock websites that I've looked into (Shutter Stock, iStockPhoto, Fotolia, etc.) are going to require a model release if your client is in any way recognizable. Traditional stock agencies will have similar requirements. Even if your existing contract includes a line regarding re-use of images (i.e. in your portfolio, on your website), I doubt that a stock company would accept this kind of document as a "release." If the client does sign a model release, then they have explicitly given you permission to use the photos and you should have no legal problems in re-using the photos.
One potential legal issue, though, could come up with respect to the definition of "consideration received." This is a standard phrased used in the beginning of most model releases, because for the contract to be valid the "model" (in this case your client) must receive something of value from you in return for your rights to re-sell the images. If the client is paying you to take his/her pictures, then you may have a tough time selling to a court that the client received anything of value. Usually this would be something like money (if you pay a model) or photographic services (if you do a trade for shoot with a model).
Ethically, I agree with most of the other answers that you should pass it by the client or at least mention the fact that you'll be re-using images for stock photography. Just because a client isn't going to use the photo doesn't mean it's a bad photo or represents the person in a bad light. As long as you sell "reject" photos that aren't embarrassing, compromising, or the like, then I wouldn't have any ethical problems with it.
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