Judge Dismisses Privacy Lawsuit Against "Voyeur" Artist Arne Svenson

[troym]

There is, but it has to do with phone conversations, overheard conversations, mail, items inside your desk that sort of thing, as to the need for a warrant -- not someone seeing or photographing you.

Folks this is NOT an invitation to discuss the NSA, but only a definition of privacy.

That's true, but "reasonable expectation of privacy" is a standard that applies beyond searches and seizures. Courts in the U.S. also invoke the standard to decide invasion of privacy claims. Here is a primer on invasion of privacy for photographers that is produced by the Reporters Committee for Freedom of the Press.

One thing missing from this thread is that there is no single law in the U.S. on privacy protections. Each state has its own mix of statutes and case law in the area. There may also be constitutional provisions (both state and federal) and federal statutory provisions as well, depending on the circumstances. So, the differences between the law in the U.S. and the U.K. or Europe can be overstated.

It's also important to remember that New York does not recognize some types of invasion of privacy claims that would be recognized in most other states. I assume that's why the plaintiffs in this case brought suit to stop the commercial exploitation of their image rather than for damages due to the intrusion caused by the photography in the first place.

 

[tunalegs]

Seriously?
You call all european states with a legal system based on case law (nearly all except UK) fascist?

Do you mean saying something is fascist just because you don't like it isn't reasonable? 😉

 

[daveleo]

he might be doing it to please her... 😀😀

😉 well . . . that's our little secret 😱

This legal case was interesting, as was reading the judges decision, and reading these comments.

Made me aware that "the right of privacy" actually does not exit in the US because it "yields to the Constitutional right of free expression".
The implications are pretty d#mn scary.

 

[clayne]

In plain view from the street or an adjacent apartment where one has not installed "privacy" devices like curtains or blinds is simply "in plain view" or not opposing "reasonable right to privacy." If you want a reasonable right to privacy, stop allowing light through the windows.

If you can't see how the judge made the right decision here - then you can't see the forest for the trees.

 

[clayne]

Also, the original judgement is just loaded up with tons of weaselly worded talk about the Foster's "children", "minors", "compromise the safety of their children", etc, etc.

The public at large has to come to terms with the fact that children are allowed to be photographed. It is legal - they have no, nor deserve any, special protections against legal photography in public or where the right to privacy does not come into play.

Thank god we haven't turned into the UK in that regard, accusing everyone of being a child predator - but if judgements like the one being discussed were allowed to be found in favor of the plaintiff we'd be well on our way there.

Consider that many judgements are chosen in a specific direction, not because the judge themselves actually agrees with the defendant's choices or ideology, but because of the potential for abuse of the law if they set precedent by ruling in the plaintiff's favor. The plaintiffs just simply didn't like what the defendant was doing and that they were subjects of his photographs. Sure, I'd probably be a bit miffed too - but the judge made the right choice here. Any ruling which rules in the favor of protecting the sanctity of free expression is generally a good thing and rulings which diminish angles of free expression are generally bad in the long run. Diminishment of free expression, through any angle, allows abuse and eventual control.

My hat's off to the judge - the best thing she did here was use actual critical thinking while considering the intent of the defendant and SPIRIT of the law. The fact that some photographers here have an issue with any of this is amazing to me and it smells a bit NIMBY to me (then again, plenty of 7k$ Leica owners here).

Personally, the particular photography isn't my cup of tea as it's a bit too "fine art" for my tastes. However, I do see his *intent* as a study in humanity and revealing the commonalities of day to day life, even amongst those who may not know each other. That's a study of the human condition. If you think the guy is a creep, you need to seriously open your mind as the photographs are far from creepy.

 

[troym]

Courts have recognized four major branches of privacy law:
1) unreasonable intrusion upon seclusion;
2) unreasonable revelation of private facts;
3) unreasonably placing another person in a false light before the public; and
4) misappropriation of a person’s name or likeness

Those are the four I learned 40 years ago from my editor.

#1 is pretty simple, it is the "don't bring a ladder" clause, seek a public vantage point which is readily accessible, however news orgainizations are seldom penalized if the victim is a celeb, even if they use a helicopter.

#2 unreasonable revelation of private facts. This one was written to protect everything from outing to affairs. Almost impossible to prosecute.

#3 Was the most often mentioned to me, meaning you never describe someone incorrectly. e.g drinking in a criminal hangout does not make the subject a criminal.

#4 Misappropriation of a person’s name or likeness is the most difficult to define. Often used by celebs to protect trademarked images. Obviously using images for endorsments.

New York doesn't recognize a claim for invasion of privacy based on #1 or #2. I guess that's why the plaintiffs tried to shoehorn the case into #4.

 

[tunalegs]

If you think the guy is a creep, you need to seriously open your mind as the photographs are far from creepy.

If you don't think it's creepy, perhaps you need to open your mind and think about why it might be. 🙂

Lewis Hine also documented the human condition. But he didn't do so by hiding in the shadows, peering through a window, and using a long lens to get as far away from his human subjects as possible. That's probably one reason why Hine's work is engaging and awesome, and Svenson's is boring and lifeless.

Now what was that Robert Capa quote about getting close enough?

 

[clayne]

If you don't think it's creepy, perhaps you need to open your mind and think about why it might be. 🙂

Lewis Hine also documented the human condition. But he didn't do so by hiding in the shadows, peering through a window, and using a long lens to get as far away from his human subjects as possible. That's probably one reason why Hine's work is engaging and awesome, and Svenson's is boring and lifeless.

Now what was that Robert Capa quote about getting close enough?

Capa's quote is specifically about immersion in photography - a school of thought I whole-heartedly support. However, the use of telephoto here from a distance and the subject matter portrayed is making use of detachment. It's not about immersion.

"Creepy" would be overt stalking of the subjects beyond the grey area of reasonable right to privacy. The subjects are just subjects here - they're effectively faceless with regards to the big picture. That's why it isn't creepy.

 

[Keith]

Capa's quote is specifically about immersion in photography - a school of thought I whole-heartedly support.

The use of telephoto here from a distance and the subject matter portrayed is making use of detachment. It's not about immersion.

"Creepy" would be overt stalking of the subjects beyond the grey area of reasonable right to privacy. The subjects are just subjects here - they're effectively faceless with regards to the big picture. That's why it isn't creepy.

I agree! I don't see it as creepy but detached as you said.

 

[tunalegs]

"Creepy" would be overt stalking of the subjects beyond the grey area of reasonable right to privacy. The subjects are just subjects here - they're effectively faceless with regards to the big picture. That's why it isn't creepy.

Actually that's part of why it is creepy. Think about it for a while.

 

[clayne]

Actually that's part of why it is creepy. Think about it for a while.

Right, so if I take shots of people on the street without talking to them and/or specifically am trying to make it "candid", then I'm a creep? We can keep going with the analogy. Only difference is he used a telephoto and shot through open windows clearly visible to himself and everyone else on his side of the block.

The point I'm trying to make is that the subjects are just abstract. It's not even about their specific lives or identities. They're a representation of shared day to day life which we can all identify with - which is ultimately the point of the photographs.

That is *not* creepy.

 

[tunalegs]

Right, so if I take shots of people on the street without talking to them and/or specifically am trying to make it "candid", then I'm a creep? We can keep going with the analogy. Only difference is he used a telephoto and shot through open windows clearly visible to himself and everyone else on his side of the block.

The point I'm trying to make is that the subjects are just abstract. It's not even about their specific lives or identities. They're a representation of shared day to day life which we can all identify with - which is ultimately the point of the photographs.

That is *not* creepy.

What is creepy is this: if you're on the street as a photographer, you're plainly visible. People can avoid you if they want, or they can confront you, or they can be friendly, etc. You're a human, they're a human, and you're sharing a space.

Svenson sat in another building from his subjects, separated by distance, hiding in his apartment, peering at them through a long lens. It's not the same as photographing somebody on the street by a long shot. Here is someone who hid themselves from his subjects, and took pains to not be engaged or even detected by them. That is what is creepy. Somebody sitting around all day watching people a long distance away, people he has no interest in actually interacting with is creepy.

There is frankly no comparison here between somebody photographing somebody else on the street, or even photographing somebody through a shop window from the street. It may legally be the same, but socially it's a completely different situation. Suppose somebody had actually seen him anyway? What would they do? Run across the street, magically find his apartment and talk to him? They couldn't if they wanted to. The situations are completely different than if he'd been on the street photographing other people on the street. That's the difference here.

 

[clayne]

I generally agree with the sentiment of what you're saying specifically, and only, with regards to photographing on the street. My point was that the intent of "candid" street photography rests itself in the same space of not being noticed and "faceless observer." Dude's who take crappy street photography with 200mm lenses aren't exactly giving their subjects much option to notice and take evasive measures either - but no one here is lobbying to get that illegalized. In that specific case I don't even think it's creepy - just cowardly.

My opinion is that you're interpreting his actions both too literally and with too much assumed malevolence on his part.

For the purposes of the photograph itself, they are anonymous and he is anonymous. The subjects might as well be still life.

 

[jtm6]

I lived in a city where it was illegal to peep into people's windows – but legal to look through a video camera and record it. Eventually the laws caught up with technology and they fixed that.

 

[noisycheese]

Here's the latest on this situation:

Peeping Tom Photography ( 🙄 ) Totally Legal, Judge Rules

You may now stand on the sidewalk outside your neighbors' apartment and take as many thrilling photos of them watching Netflix as your heart desires—and there's nothing they can do to stop you.

Manhattan Supreme Court Justice Eileen Rakower ruled that a photographer who took a series of surreptitious photos of his neighbors across the street and exhibited them in a gallery had every legal right to do so.

Artist Arne Svenson was sued earlier this year by residents in a luxury apartment on Greenwich Street in Tribeca after they realized his solo show at the Julie Saul Gallery in Chelsea featured photos of them inside their homes, unwittingly participating in Svenson's art. "The neighbors don’t know they are being photographed; I carefully shoot from the shadows of my home into theirs," Svenson told the Post in May. “I am not unlike the birder, quietly waiting for hours, watching for the flutter of a hand or a movement of a curtain as an indication that there is life within.”

Martha and Matthew Foster sued Svenson to get possession of the photos, arguing that his work "shocks the conscience and is so out of keeping with the standards of morality in the community. They also asked the court to bar Svenson from ever displaying the images again. The photos, which don't show anyone's faces, sold briskly when they went on display earlier this year, with some prints going for $7,500 each.

But Manhattan Supreme Court Justice Eileen Rakower was not persuaded. "Art is considered free speech and is therefore protected by the First Amendment,” Rakower wrote in her ruling. "While it makes the [Fosters] cringe to think that their private lives and images of their small children can find their way into the public forum of an art exhibition, there is no redress under the current laws of the state of New York." That's right, this is the Empire State! You can photograph pretty much anything in public, even cops... though you may get arrested anyway.

Link: http://gothamist.com/2013/08/09/peeping_tom_photography_totally_leg.php

The plaintiffs claim that the photos are "so out of keeping with the standards of morality in the community." Hmmm.

Three miles up the street from Tribeca, Times Square is riddled with so-called "adult entertainment" establishments ( https://maps.google.com/maps?ie=UTF...10036&ei=At8GUuz7OubK2AWpm4DoBw&ved=0CIgCEMgT ) and that's okay - but the photographs in this exhibition are an abomination and an affront to "the standards of morality in the community??"


LMAO!!! 😀

IMHO, that claim simply does not hold water.

YMMV.

 

[TheFlyingCamera]

Actually, the Times Square peep shows are almost completely gone now, but general point made. A few blocks and a few years away, the Meat Packing District was home to some of the raunchiest gay sex clubs on the planet. Granted they're all replaced by $60 entree restaurants, but this is New York we're talking about here, where they publish lists of Manhattan rooftop water tanks that make for good nude sunbathing/skinny-dipping spots. Community outrage? A community outrage in New York would be not scooping your dog's poop, or Ed Koch in a dress.

 

[semi-ambivalent]

Government 101

Government 101

The Judicial Branch: They know a lot about water rights and cattle rustling...

 

[mfunnell]

I live in a city where a guy can plaster his "weiner" all over the internet, and run for mayor of the city. They have not fixed that.

It also appears he has started an international trend:

http://www.couriermail.com.au/news/...-secret-mistress/story-fnihsrf2-1226691713991

While our guy hasn't (yet) tried to make his - excuse the expression - political comeback he has established the verb "to dowl" in the Australian political lexicon.

...Mike

 

[noisycheese]

I live in a city where a guy can plaster his "weiner" all over the internet, and run for mayor of the city. They have not fixed that.

I have to wonder: How does that comport with "the standards of morality in the community?" 🙄

 

[fti]

Ironically photography has always been at odd ends with privacy. In fact, the initial Privacy legilation and movement has been spurred on by the rise of photography in the late 19th century (see Warren and Brandeis, "The Right to Privacy", Harvard Law Review 1890)

There is never going to be a right or wrong in this, as there is a clash of two classic freedoms. The freedom of speech and the right 'to be left alone'. At the end of the day it's a balancing game between the two.

The prudent judge knows this and would weigh the benefits and invasion of one right above the other. The lazy judge just passes judgment based on whatever escape the law provides.