As recently reported by Artnet News, the New York State Supreme Court, Appellate Division ruled in favor of New York based fine arts photographer Arne Svenson and affirmed the Supreme Court's decision that Svenson's photographs of his Manhattan neighbors going about their everyday lives in their homes through open windows were protected under the First Amendment "in the form of art."
Svenson garnered a significant amount of attention and controversy back in 2013 when his exhibition "The Neighbors" opened at a New York art gallery that was followed by legal action. Svenson's neighbors had learned that the photographer had been taking pictures of them inside their apartments using a telephoto lens, without their consent.
A couple of the subjects shown in the photographs originally filed a complaint in the New York Supreme Court back in May 2013 on behalf of themselves and their minor children claiming that Svenson had photographed them and their children without their consent and arguing that they were "frightened and angered by defendant's utter disregard for their privacy and the privacy of their children," and further that the photographs were used for commercial purposes for promotion of an exhibition where they would be available for purchase and were also available for purchase online, thereby constituting advertising and trade.
The Supreme Court ruled in Svenson's favor in August 2013 and the plaintiffs appealed shortly thereafter in September of that year.
In upholding the lower court's ruling, Justice Dianne T. Renwick of the Appellate Division acknowledged that the subjects in the photographs were unaware that they were being photographed and acknowledged the limitations of New York's statutory privacy law in redressing this type of "technological home invasion and exposure of private life." The court found, however, that the type of "invasion of privacy" that occurred in this situation is not actionable because Svenson's use of the images "constituted art work" and hence were not considered "use for advertising or trade purposes" under the applicable New York privacy statute. New York's right of privacy statute essentially prohibits the use of a person's likeness for commercial purposes without permission.
Justice Renwick further wrote "however disturbing" Svenson's conduct may be with the publishing of the subject photographs as works of art, "without any further action toward plaintiffs," there was no viable claim for "violation of the statutory right to privacy."
While the fine art photographer's actions may be legal for now, Justice Renwick believes that legislators need to review this "troubling" issue and possibly draft legislation that prohibits it in the future. In particular, Justice Renwick writes "many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature."
Svenson's exhibition "The Neighbors" is scheduled to open at the Museum of Contemporary Art in Denver in February 2016.
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