Artist who photographed neighbors with zoom lens isn’t liable for privacy invasion

A family photographed in their glass-walled apartment by an artist in a neighboring building can’t recover for privacy invasion under New York law, a state appeals court has ruled.

Artist Arne Svenson used a telephoto lens to photograph the family of Martha and Matthew Foster, who sued after he balked at their initial request to remove both photos of their two young children from his art exhibition. The New York Appellate Division, First Department, ruled for Svenson on April 9, report the Legal Profession Blog, the New York Law Journal and the Hollywood Reporter.

The appeals court said the case “highlights the limitations of New York’s statutory privacy tort” in cases involving “this type of technological home invasion and exposure of private life.” The law bars nonconsensual use of a person’s photo for advertising or trade purposes.

Svenson began the project in February 2012, photographing residents of the neighboring buildings “surreptitiously, hiding himself in the shadows of his darkened apartment,” the appeals court said. Svenson obscured faces in a comment on the anonymity of urban life and assembled the photos for an exhibit he called “The Neighbors.”

After the Fosters hired a lawyer, Svenson and an art gallery removed the children’s photos, but one of them appeared in a TV broadcast about the show on a New York television station and NBC’s Today.

The New York law barring nonconsensual commercial use of photos has been interpreted under the First Amendment to allow nonconsensual photos for newsworthy events and matters of public concern, the appeals court said. The exemption also applies to artistic expression and to advertising promoting the art, according to the opinion.

The court added that, undoubtedly, “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.”