Foster v. Svenson - 2015 NY Slip Op 03068, 128 A.D.3d 150, 7 N.Y.S.3d 96 (App. Div. 1st Dept.)

Rule:

Since the newsworthy and public concern exemption of the privacy statute, Civil Rights Law §§ 50 and 51, has been applied to many types of artistic expressions, including literature, movies and theater, it logically follows that it should also be applied equally to other modes of artistic expression. Indeed, works of art also convey ideas. Although the Court of Appeals of New York has not been confronted with the issue of whether works of art fall outside the ambit of the privacy statute, other courts that have addressed the issue have consistently found that they do.

Facts:

Defendant Arne Svenson, a critically acclaimed fine art photographer, embarked on a project photographing the people living in the building across from him. Defendant photographed the building's residents surreptitiously, hiding himself in the shadows of his darkened apartment. Defendant asserted that he did so for reasons of artistic expression. After approximately one year of photography, defendant assembled a series of photographs called "The Neighbors," which he exhibited in galleries in Los Angeles and New York. During the New York exhibition of "The Neighbors," plaintiffs and other residents of the building learned, through media coverage of the exhibition, that they had been defendant's unwitting subjects. Plaintiffs, in particular, learned that their children, then aged three and one, appeared in the exhibition. Despite defendant's professed effort to obscure his subjects' identity, plaintiffs' children were identifiable in the photographs. Upon viewing defendant's website, and discovering that the photographs of her children were being offered for sale, plaintiff mother called defendant to demand that he stop showing and selling the images of her children. Defendant agreed with respect to the photo with the children together, but was noncommittal about the photo of plaintiff's daughter. A photograph of the plaintiff’s daughter was then showed on a television broadcast. Subsequently, plaintiffs commenced the present action seeking injunctive relief and damages pursuant to the statutory tort of invasion of privacy and the common-law tort of intentional infliction of emotional distress. Defendant cross-moved to dismiss the complaint, asserting the theory that because the photographs were art, they were protected by the First Amendment, and their publication, sale, and use could not be restrained. The trial court dismissed the action.

Issue:

1. By taking photos of the plaintiffs’ children, did defendant commit an actionable invasion of privacy pursuant to sections 50 and 51 of the Civil Rights Law?
2. Did the First Amendment protect the photographs in question?

Answer:

1) No. 2) Yes.

Conclusion:

The Court held that the defendant's act of taking photos of plaintiffs and their children through their apartment windows and offering the photos for sale was not actionable as invasion of privacy under Civil Rights Law §§ 50 and 51, as his use of the images constituted art work, and thus was not deemed "use for advertising or trade purposes" within the meaning of §§ 50 and 51. According to the Court, that profit might have been derived from the sale of the artwork did not diminish the constitutional protection afforded by the "newsworthy and public concern" exemption to §§ 50 and 51. As the images themselves constituted the work of art, which was protected by the First Amendment, advertising undertaken to promote the artwork was permitted. The Court averred that defendant's conduct, however disturbing it might be, was not so "outrageous" that it went beyond decency and the protections of the "newsworthy and public concerns" exemption.