Friday, September 22, 2023

Photographer Wins Privacy Infringement Case



Last week, the New York Appellate Division, First Department, found that privacy law does not protect individuals in glass-walled apartments from being photographed by an artist in a neighboring building.  The artist, Arne Svenson, is a critically acclaimed fine art photographer who used a telephoto camera lens to photograph people in the building across from him, without their consent, and exhibited a series of these photographs, called “The Neighbors,” in galleries in Los Angeles and New York. Two of the neighbors, Matthew and Martha G. Foster, sued Svenson on behalf of themselves and their children in May 2013 seeing damages and injunctive relief for violation of their right to privacy under New York Civil Rights Law §§ 50, 51; however, these statutes limit the tort of privacy to appropriations used for commercial (advertising or trade) purposes to avoid contradicting the First Amendment.

In August 2013, the Supreme Court ruled in favor of Svenson, finding that art is granted a broader protection of free speech than images used for advertising or trade purposes.  An artist “may create and sell a work of art that resembles an individual without his or her written consent,” and therefore, Svenson’s photos, as art and valued artistic expression, are shielded from sections 50 and 51 of the New York Civil Rights Law. Displaying the photographs in an exhibition “promote[s] the enjoyment of art,” a purpose beyond advertising or trade.

Judge Dianne T. Renwick, writing for the Appellate Division, agreed with the Supreme Court. Because Svenson’s photographs “constituted art work,” they were not used for advertising or trade and the statute did not apply.  The court found that “advertising and trade purpose” does not extend to all objects bought and sold in commerce, and advertising to promote the art work in connection with its sale is permitted under the First Amendment. The Fosters had no viable claim for violation of the right to privacy.

More via the ABA Journal and artnet News.


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  • Dan

    The case would very likely have had a different outcome if litigaged in California under California Civil Code Section 1708.8.

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