Photographer who took photos of neighbors wins legal battle in New York Supreme Court

A New York City family had no basis to sue a photographer who surreptitiously captured images of his neighbors from his own apartment window and later displayed and sold the same images at a public art exhibition, a New York trial court judge ruled Monday.

While New York's civil rights law protected the Foster family and Svenson’s other subjects from invasions of privacy for commercial purposes, Judge Eileen A. Rakower dismissed the case after deciding that Svenson’s work was an artistic expression protected by the First Amendment, New York state law and court precedents.

Tribeca artist and photographer Arne Svenson used a telephoto lens to take intimate shots of families living in an adjacent building. The photos were later printed and assembled in an art exhibit titled The Neighbors.

Though no faces are shown in any of the images, the Foster couple recognized themselves and their children in the photos and sued Svenson in a New York Supreme Court, a trial court, for invading their privacy. They asked for an injunction to prevent the photographer from further disseminating to media outlets and selling reproductions of the images.

Under the state’s civil rights law, a photographer cannot use a private individual’s picture “for the purposes of trade” without first obtaining a written consent. Art exhibits are not themselves considered commercial uses, but the Fosters argued that the use of copies in promoting the art exhibit was commercial.

Rakower held, however, that because the art exhibit itself was newsworthy, its promotion did not violate the state law.

“The Neighbors exhibition is a legitimate news item because cultural attractions are matters of public and consumer interest,” Judge Rakower wrote. Therefore, Svenson was allowed to disseminate his photographs to television networks and news agencies.

Regarding Svenson's selling of the photographs, the judge held that the right to disseminate speech and expression included the right to sell it.

"The value of artistic expression outweighs any sale that stems from the published photos," Rakower held.

The decision was strong win for photographers, but National Press Photographers Association General Counsel Mickey Osterreicher said the decision was very specific to the facts of this case. The judge didn’t stray far from the general jurisprudence of New York courts. But had Svenson shown his subjects’ faces or shot images further inside the apartments, the case might have ended differently under another cause of action.

“But based on these facts,” Osterreicher said, “I think the judge got it right.”