(CN) – A New York couple cannot prevail on their privacy claim against a photographer because he turned his photos into a work of art, a state appeals court ruled.
Arne Svenson began his project, “The Neighbors,” by aiming his high-powered camera lens from his own apartment through the window of Martha and Matthew Foster in a nearby building.
Svenson, whose photos have adorned museums in the United States and Europe, would hide in his darkened apartment while taking the photos.
He stated that he was seeking to comment on the “anonymity” of urban life, and that he did not reveal his subjects’ faces.
During one photo session, a reporter for The New Yorker was with Svenson. He reported that a half-naked little girl was dancing in the window wearing a tiara.
“As she turned away, (Svenson) took a photograph. ‘I don’t like it when little girls are running around without their tops, he said, ‘but this is a beautiful image,” the reporter wrote.
After shooting photos of “The Neighbors” for a year, Svenson displayed his work at museums in New York and Los Angeles.
The Fosters learned about the exhibit and discovered that they were, in fact, “The Neighbors.” Their children, ages 3 and 1, were included in the exhibit.
Martha Foster discovered that Svenson was selling some of the photos on his website. She contacted Svenson and asked him to stop.
After receiving letters from Foster’s attorney, Svenson and the Manhattan gallery removed the photos of the children.
Despite this, a photo of Foster’s daughter, with her face visible, appeared on television, including on NBC’s “The Today Show.”
The Fosters sued Svenson for invasion of privacy and intentional infliction of emotional distress. They also obtained a temporary restraining order.
Svenson argued that his photos were works of art that were protected by the First Amendment.
The trial court agreed, dismissing the Fosters’ lawsuit. The court ruled that Svenson was expressing his “thoughts and ideas” and that the photos were not merely commercial because they “promote the enjoyment of art in the form of a displayed exhibition.”
The Fosters appealed, but the Manhattan-based New York Appellate Division upheld the dismissal of their claims last month.
Writing on behalf of the court’s five-justice panel, Justice Dianne Renwick noted that the state’s privacy law prohibits unauthorized use of a person’s “name, portrait, picture or voice” for “advertising purposes” and “for the purposes of trade.”
Also, she added, the privacy statute does not apply to “newsworthy events and matters of public concern.”
“Since the newsworthy and public concern exemption has been applied to many types of artistic expressions, including literature, movies and theater, it logically follows that it should be applied equally to other modes of artistic expression,” Renwick wrote.
She also noted that the photos were displayed in art galleries by a famous fine-arts photographer.
“Since the images themselves constitute works of art, and art work is protected by the First Amendment, any advertising undertaken in connection with the promotion of the artwork is permitted,” Renwick stated.
She added that “many people would be rightfully offended by the intrusive manner” in which Svenson took the photos.
“However, such complaints are best addressed to the Legislature – the body empowered to remedy such iniquities.”
In their lawsuit, the Fosters noted Svenson’s promotional materials discussing his project.
“I am not unlike the birder,” he asserted, “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.”
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