More Thoughts on New York’s Peeping Tom

The newspaper that brought us Edward Snowden opines on artist Arne Svenson’s controversial photo project, The Neighbors.

If you keep up with art law you will recall that Svenson recently won a court battle regarding whether or not his zoom-in photos of his neighbors inside their homes infringed their privacy rights (here’s a link to the court’s opinion, pdf format). The question for the NY court was whether the photographs used by Svenson in an exhibition or as examples of his art qualified as a commercial use or for the purpose of advertising or trade.

The court also noted, however, that while NY privacy laws prohibit nonconsensual use of a person’s image for advertising [ or trade] purposes, advertising [or trade] that is undertaken in connection with a use protected by the First Amendment falls outside the statute’s reach.

Taking these factors into consideration, the NY court noted,

Art is considered free speech and is therefore protected by the First Amendment. Accordingly, an artist may create and sell a work of art that resembles an individual without his or her written consent.

The use of an individual’s name or likeness in artistic expression is more than a use for the purposes of advertising or trade, and “[p]art of the protection of free speech … is the right to disseminate the ‘speech,’ and that includes selling it.”

Basically, the NY court noted that Svenson’s photographs “serve more than just an advertising or trade purpose because they promote the enjoyment of art in the form of a displayed exhibition.”

So is there any recourse for NY individuals photographed without their consent for the sake of art? Not really. So unless the New York legislature amends or enacts a state law barring such “artistic” acts–and so long as those laws are constitutional–the Foster’s and other folk are out of luck.