April 9, 2015 – The case of Foster v Svenson highlights the inadequacy of New York state laws for protecting privacy. At issue in Foster was the work of Arne Svenson, “a critically acclaimed fine art photographer whose work has appeared in galleries and museums throughout the United States and Europe – specifically a project called “The Neighbors.” For “The Neighbors,” Svenson hid in his dark Manhattan apartment and surreptitiously photographed the inhabitants of the glass-facaded building across the street, using a high-powered telephoto lens. After a year of taking these photos, Svenson assembled selected images and exhibited them in galleries in New York and Los Angeles.
Svenson described his project as a commentary on the “anonymity of urban living.” According to the court, he “spent hours, in his apartment waiting for his subjects to pass the window.
During the New York exhibition of “The Neighbors,’” the Fosters and other residents of their building learned that Svenson had secretly photographed them and was using their images. More troubling, the Foster’s learned that photographs of their one- and three-year-old children were included in the exhibit. As the court noted, “[d]espite defendant’s professed effort to obscure his subjects’ identity, plaintiffs’ children were identifiable in these photographs, one of which showed their son in his diaper and their daughter in a swimsuit…”
The Fosters demanded that the photos be removed from the gallery exhibition, the gallery’s website, and Svenson’s website; Svenson and the gallery complied. Despite these efforts, though, the images were still used in the media, including on NBC’s “Today Show.” Worse still, the address of the Fosters’ building was widely disclosed in the media.
The Fosters sued in May 2013, asserting claims for invasion of privacy under a New York statute and for intentional infliction of emotional distress, seeking monetary damages and an injunction against further use of the photographs. Svenson moved to dismiss the complaint on the ground that his work is protected by the First Amendment. The trial court granted the motion, and the Fosters appealed.
The appeals court affirmed, begrudgingly. In the court’s words:
This public apprehension over new technologies invading one’s privacy became a reality for plaintiffs and their neighbors…. This case highlights the limitations of New York’s statutory privacy tort as a means of redressing harm that may be caused by this type of technological home invasion and exposure of private life. We are constrained to find that the invasion of privacy of one’s home that took place here is not actionable as a statutory tort of invasion of privacy pursuant to sections 50 and 51 of the Civil Rights Law, because defendant’s use of the images in question constituted art work and, thus is not deemed ‘use for advertising or trade purposes’ within the meaning of the statute.
New York’s privacy statutes simply are not broad enough to encompass Svenson’s conduct – even though most of us would consider being secretly photographed (or having our children photographed) in our homes a serious invasion of privacy, and one that could be redressed under the laws of other states.
The Foster court traced the history of New York’s privacy statutes, revealing that they were always intended to create and protect a right of publicity – a person’s right to control the commercial use of his name or likeness – not a broader right to privacy. The state legislature enacted the privacy statutes in response to public outcry over the Court of Appeals’ 1902 ruling in Roberson v Rochester Folding Box Co.. In Roberson, the defendant flour company created and distributed thousands of advertisements containing photographs of the plaintiff, without her knowledge or consent. The trial court held that the plaintiff had a “right … to be let alone’” and that such right had been violated by the defendant’s distribution of her image. The Court of Appeals reversed, declining to recognize a common law right to privacy.
The Roberson court noted that “the legislative body could very well … provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent” – and the legislature responded by passing Civil Rights Law sections 50 and 51. These sections prohibit the nonconsensual use of a person’s “name, portrait, picture or voice” for “trade” or “advertising purposes.” Section 51 further gives the victim of a violation the right to an injunction, as well as compensatory and punitive damages.
Endeavoring to protect First Amendment rights, New York courts applying these laws have narrowly interpreted the terms “trade” and “advertising.” For example, the courts have “consistently held that the privacy statute should not be construed to apply to publications regarding newsworthy events and matters of public concern… Th[is] exemption has been applied to many other forms of First Amendment speech, protecting literary and artistic expression from the reach of the statutory tort of invasion of privacy,” as well as materials published for entertainment. As the Foster court explained, “there is a strong societal interest in facilitating access to information that enables people to discuss and understand contemporary issues. … Since the newsworthy and public concern exemption 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.”
The Foster court cited as precedent the factually-similar case of Nussenzweig v. diCorcia. There, a respected artist photographed a series of candid shots of people walking in Times Square. The images displayed and offered for sale in a gallery. The plaintiff, an Orthodox Jew with a religious conviction against the use of his image, was easily identifiable in ten of the photographs. Although the diCorcia majority resolved the case on statute of limitations grounds and did not reach the merits, the concurring judges concluded that “the inclusion of the photograph in a catalog sold in connection with an exhibition of the artist’s work did not render its use commercial pursuant to the privacy statute because the public expression of those ideas and concepts was fully protected by the First Amendment.” That is, even though the photographs were sold and were used in materials advertising the exhibition, they were not used for “trade” or “advertising purposes” within the meaning of the statutes.
Simply stated, “works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption. … [T]he public, as a whole, has [a] 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.” Like the diCorcia concurrence, the Foster court reasoned that, because the art itself was protected by the First Amendment, advertisements of the art work are likewise protected – and are outside the scope of Sections 50 and 51.
The court was not persuaded by the Fosters’ argument that the exemption from the privacy laws of newsworthy materials and works of art should not apply where pictures are obtained “in an improper manner.” In the court’s view, it lacked authority to create such a rule.
The Foster court also affirmed the dismissal of the plaintiffs’ claim for intentional infliction of emotional distress noting the “high bar for what constitutes outrageous behavior.” The court cited an opinion in an earlier photography case dismissing a claim for intentional infliction of emotional distress as “an end run around a failed right to privacy claim.” While the Foster court acknowledged that Svenson’s conduct – “intru[ding] … into plaintiffs’ home” and photographing their young children – was at least somewhat offensive, it was not “atrocious, indecent and utterly despicable,’ as would be required to support an emotional distress claim.
The court concluded by describing Svenson’s conduct as “disturbing” and acknowledging that many people would be “rightfully offended” by it and by current law’s inability to provide redress – but advising that “such complaints are best addressed to the Legislature. Finally, the court implored the legislature to act “in these times of heightened threats to privacy posed by new and ever more invasive technologies.