Artist or Peeping Tom? When is a Photo an Invasion of Privacy?
A New York state appeals court ruled that an artist who used a telephoto lens to photograph a family in their glass-wall apartment was not liable for invasion of privacy.
Starting in 2012, artist Arne Svenson took pictures of his New York City neighbors, “surreptitiously, hiding himself in the shadows of his darkened apartment,” according to the court.
One of Svenson’s targets was the Zinc Building. According to the New Yorker,
Made up of floor-to-ceiling windows, the building’s façade offered a panorama of urban living: rows of families in high-visibility nests. Svenson consulted a lawyer and learned that, in a city where people are so tightly crammed together, there is scant presumption of privacy. A few test shots grew into a yearlong obsession; if the building’s residents were home, Svenson had to photograph them. He cancelled dinner plans, skipped theatre dates, and took thousands of pictures. He watched “Rear Window”—four times. “He sits and he waits,” he said, of the character Jimmy Stewart plays. “I feel a certain camaraderie with that.”
Svenson displayed the collection of photos in an art exhibit he called “The Neighbors.”
Some of the photos can be seen in this article in the New Yorker. Some subjects are identifiable and others are not.
Martha and Matthew Foster, residents of the Zinc Building, sought to have pictures of their young children removed from the exhibit. Svenson and the art gallery complied, but one of the photos of the children appeared on the Today show and on a New York television station.
The Foster’s young children were shown wearing a diaper and swimsuit. Prints of pictures of the children were offered for sale for $5000 to $7500 each.
In a promotional statement, Svenson said,
For my subjects there is no question of privacy. The neighbors don’t know they are being photographed; I carefully shoot from the shadows of my home into theirs. I am not unlike the birder, quietly waiting for hours, watching for the flutter of a hand or the movement of a curtain as an indication that there is life within.
Svenson inherited the telephoto lens he used from a friend who was a birdwatcher.
The Fosters sued for invasion of privacy and intentional infliction of emotional distress. Svenson moved to dismiss the case. A New York court granted the motion to dismiss, on the grounds that the photographs were protected by the First Amendment.
New York law prohibits the nonconsensual commercial use of photographs. This law has been interpreted to allow nonconsensual photographs when subjects are newsworthy or matters of public concern.
According to the court, this exemption also covers artistic expression and advertising that promotes such art.
In the wake of the lawsuit, some residents of the Zinc Building are buying window coverings. Others have started to take photos of Svenson.
Professional photographers often ask subjects to sign release forms, to avoid later disputes about the use of the images. As I discussed in this article, disputes can still arise when photos or videos are used for some purpose not stated in the release form.
If you have questions about privacy and the unauthorized use of photographs, you may wish to consult a privacy attorney in your area.