Appellate Victory for “The Neighbors” Photographer against Right of Privacy Claim

rne Svenson, a New York-based fine art photographer, prevailed on an appeal before the New York Supreme Court Appellate Division, First Department, filed by plaintiffs Martha and Matthew Foster, who had unsuccessfully sought to prevent the display, promotion, or sale of certain photographs from Svenson’s popular series “The Neighbors” by invoking New York’s right of privacy statute.  A unanimous panel of the court held that Svenson’s photographs – taken with a telephoto camera lens without his subjects’ knowledge – “is not actionable as a statutory tort of invasion of privacy” because “the images in question constituted art work and, thus [are] not deemed ‘use for advertising or trade purposes,’ within the meaning of the [privacy] statute.”  The court noted that the plaintiffs’ complaints were “best addressed to the Legislature” given the narrow scope of New York’s privacy law.

Svenson took pictures of residents partially visible against the Mondrian-like glass-walled apartment building across from his TriBeca studio by using a telephoto lens, in order to capture the anonymity of city living.  The Fosters recognized their young children in two of Svenson’s photographs featured in an article about “The Neighbors” exhibition (which had been held in Los Angeles and in Manhattan’s Julie Saul Gallery) and sent cease-and-desist letters, with which Svenson complied. The news media, however, continued to publish the photographs – particularly the one known as “Neighbors No. 12” – prompting the Fosters to bring an action in New York Supreme Court in 2013 for violation of New York’s privacy statute, Civil Rights Law §§ 50 & 51.

The central issue in the lawsuit was the conflict between freedom of artistic expression and the right to privacy. The Supreme Court in the action below held that Svenson’s First Amendment rights outweighed the Fosters’ right to privacy within the limited ambit of Civil Rights Law Sections 50 & 51. The court ruled that the photographs were protected by the First Amendment as artwork and that Svenson was permitted to sell those works, and advertise and promote their sale, without running afoul of the law’s prohibition on the non-consensual use of one’s likeness for purposes of advertising or trade. The court also explained that the media were entitled to use the photographs to convey newsworthy information without exposing Svenson to liability. Accordingly, the court granted Svenson’s cross-motion to dismiss the lawsuit in its entirety, including the plaintiffs’ claim for intentional infliction of emotional distress.

The Fosters appealed the lower court’s decision, and the case was heard by a five-judge panel of the Appellate Division, First Department in Manhattan. The court, in a 23-page opinion which chronicled the history of New York privacy law, affirmed that the photographs, as works of art, are outside the scope of the privacy statute under the same rationale that newsworthy matters and issues of public concern are exempt. Like the press, the court held that artists should have broad leeway to disseminate works and ideas in which there is a strong public interest. The court explained that artists are permitted to disseminate “images, aesthetic values and symbols contained in the art work” and to convey to the public valuable expressive and artistic ideas through works of art such as photographs, assuming that the First Amendment purpose is not merely incidental to the image’s commercial purpose.

The court did not need to decide how to define “art” or independently analyze whether the photographs in “The Neighbors” constituted art because the plaintiffs had conceded the point in the proceedings below.  The court held that Svenson’s purpose in disseminating the works was not for advertising or trade as those terms are understood in the context of the privacy statute, but rather was for the expressive purpose of disseminating constitutionally protected works of art, which is exempted from Sections 50 and 51. Moreover, the court reiterated that under the purview of the First Amendment, because the photographs constitute works of art, any advertising made in connection with the promotion of the artwork is also permitted. The court emphasized that “the fact that profit might have been derived from the sale of the art work does not diminish the constitutional protection afforded by the newsworthy and public concern exception.”

Svenson’s use of the photographs as published works of art not only did not constitute the type of conduct that is prohibited by the statutory right of privacy, but the methods by which he took the photographs were not, themselves, unlawful and did not rise to the level of the “extreme and outrageous” conduct necessary to state a claim for intentional infliction of emotional distress.  The Appellate Division accordingly affirmed the Supreme Court’s dismissal of that tort claim as well.

Both the Supreme Court and the Appellate Division holdings serve to further illuminate the limited scope of the New York privacy statute and distinguish the purpose of an image from the method in which the image was created.  The Appellate Division has placed, on the books, an opinion consistent with other New York state and federal courts’ interpretation of the limited New York privacy statute, and delineated clear boundaries for its application while, at the same time, calling upon the legislature to consider modern privacy concerns in rethinking the State’s century-old privacy laws.

Arne Svenson was represented by Nancy E. Wolff, Matthew Kaplan, and Scott J. Sholder of Cowan, DeBaets, Abrahams & Sheppard, LLP.