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In 2013, New York artist Arne Svenson sparked some outrage upon the exhibit of The Neighbors, featuring photographs taken with a telephoto lens of those living near his lower Manhattan residence. After consulting with a lawyer who advised there was little presumption of privacy, and after watching Alfred Hitchcock‘s Rear Window four times, according to The New Yorker, Svenson shot a number of images, including a “little girl dancing in her tiara half naked.”
After the gallery show opened, angry online comments appeared, and NBC’s Today show ran a segment on the controversy titled “Art or Invasion of Privacy?”
Turns out, that was the wrong question. A lawsuit was filed by some of the subjects, including the mother of the girl whose photograph was removed upon demand from the gallery but then shown on the Today show. The plaintiffs conceded that Svenson’s works are art; nevertheless, they alleged that the artist had violated their statutory right to privacy.
On Thursday, a New York appeals court rejected the “Art and invasion of privacy” theory while at the same time sent out a call that New York’s legislative body should take a look at reforming the state’s privacy laws.
The case examines New York laws prohibiting the non-consensual use of a person’s name, portrait or picture for advertising or trade purposes. The laws, though, carve out an exception for newsworthy events and matters of public concern. The media gets a pass. How about artists like photographers and filmmakers?
“Under this exemption, the press is given broad leeway,” writes Justice Dianne Renwick. “This is because the informational value of the ideas conveyed by the art work is seen as a matter of public interest. We recognize that the public, as a whole, has an equally strong interest in the dissemination of images, aesthetic values and symbols contained in the art work. In our view, artistic expression in the form of art work must therefore be given the same leeway extended to the press under the newsworthy and public concern exemption to the statutory tort of invasion of privacy.”
The justice quickly notes that there are limits, such as when the newsworthy aspect of the art is “merely incidental to its commercial purpose,” which comes up because the plaintiffs argue that Svenson used their images in media to promote The Neighbors, which was to result in the sale of photographs on display. (One can imagine a similar argument being made with respect to a documentary that gets promoted via the media with the end result being the sale of movie tickets.)
That argument doesn’t fly.
“Since the images themselves constitute the work of art, and art work is protected by the First Amendment, any advertising undertaken in connection with the promotion of the art work was permitted,” states the opinion, which adds that profits from the sale of the art don’t diminish the constitutional protection either.
The decision also goes into another provocative argument from the plaintiffs that because the photographs were obtained in an improper manner, that fact sets them apart as improper. The appellate justice interprets this as meaning the images constituted “extreme and outrageous conduct” overcoming First Amendment protection.
The argument fails because of the high bar for showing outrageousness, but in a notable move, Renwick has directly called for a reexamination of the law:
“In short, by publishing plaintiffs’ photos as a work of art without further action toward plaintiffs, defendant’s conduct, however disturbing it may be, cannot properly, under the current state of the law, be deemed so ‘outrageous’ that it went beyond decency and the protections of Civil Rights Law sections 50 and 51. To be sure, by our holding here ?finding no viable cause of action for violation of the statutory right to privacy under these facts ?we do not, in any way, mean to give short shrift to plaintiffs’ concerns. Undoubtedly, like plaintiffs, 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 — the body empowered to remedy such inequities. Needless to say, as illustrated by the troubling facts here, in these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists.”
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