Spying Photographer Beats Privacy Claims Thanks to a 113-Year-Old Law

Apr 10, 2015

Liron Samuels

Liron Samuels is a wildlife and commercial photographer based in Israel. When he isn’t waking up at 4am to take photos of nature, he stays awake until 4am taking photos of the night skies or time lapses. You can see more of his work on his website or follow him on Facebook.

Spying Photographer Beats Privacy Claims Thanks to a 113-Year-Old Law

Apr 10, 2015

Liron Samuels

Liron Samuels is a wildlife and commercial photographer based in Israel. When he isn’t waking up at 4am to take photos of nature, he stays awake until 4am taking photos of the night skies or time lapses. You can see more of his work on his website or follow him on Facebook.

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Many of you may remember Arne Svenson, the New York artist who photographed his neighbors in their homes using a telephoto lens and used them in an exhibition.

Svenson began the project after watching Alfred Hitchcocks’ “Rear Window” and being advised by a lawyer that the presumption of privacy is minimal in such a jam-packed city.

The “Neighbors” exhibition was obviously very controversial and led to some of the subjects suing Svenson, though the NY Country Supreme Court dismissed the case in 2013.

A Manhattan appeals court agreed with the previous court ruling, citing the photographer was in the clear due to a law from 1902, and urged legislators to consider a reform to the privacy laws.

The plaintiffs had agreed that Svenson’s photos are art, but that their right to privacy was violated nonetheless. According to the appeals court, however, if its art it isn’t against the law.

New York’s laws regarding the need to obtain consent in order to use a person’s photo for trade or advertising purposes includes an exception for the media in cases of newsworthy events and matters of public interest.

Justice Dianne Renwick of the appeals court explained the decision:

“In this case, we are constrained to concur with the views expressed in Altbach, Hoepker, and Nussenzweig’s concurrence: works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption.

As indicated, under this exemption, the press is given broad leeway. 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 plaintiffs, including parents whose children were photographed, were not only enraged about being photographed in their homes, but also that the photos were displayed in New York and Los Angeles galleries. Some of the photos were even sold for as much as $10,000.

The photography community has been under attack recently with ridiculous bills such as the Texas bill banning police photography from within 25-feet or the Arkansas bill that would require photographers to have every person in the photo sign a model release, but this case seems equally absurd.

Turns out Justice Renwick is not a fan of Svenson’s approach, but New York privacy statute was set in 1902 leading to the law being on the photographer’s side:

“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”.

Where would you draw the line between the public’s concern, an artist’s rights and a person’s right to privacy?

[via The Hollywood Reporter | Lead Image: Curtis MacNewton]

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Liron Samuels

Liron Samuels

Liron Samuels is a wildlife and commercial photographer based in Israel. When he isn’t waking up at 4am to take photos of nature, he stays awake until 4am taking photos of the night skies or time lapses. You can see more of his work on his website or follow him on Facebook.

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8 responses to “Spying Photographer Beats Privacy Claims Thanks to a 113-Year-Old Law”

  1. Allen Mowery Avatar
    Allen Mowery

    Close the dang curtains!

    1. Kay O. Sweaver Avatar
      Kay O. Sweaver

      Agreed, if I can see it with my eyes, I should have the right to photograph it. Constraining the rights of photographers is a matter of freedom of expression. Privacy is important, but its also a personal responsibility.

      Don’t want to be caught with your mistress? Either don’t have a mistress, or do a good job of covering your tracks.

      1. Jason Wright Avatar
        Jason Wright

        There is a difference between walking past a ground floor window and seeing what’s inside and a deliberate act involving a massive zoom lens or telescope deliberately looking into a high up tower block.
        I would certainly expect privacy even without my curtains closed. I think a good rule of thumb would be “If the photographer is not as visible to the subject as the subject is to the photographer then an expectation of privacy exists”.
        The point being if you KNOW somebody has a camera you might not do something or close the curtain. You can’t however be expected to live in constant fear with the windows blocked out all the time.

      2. Ms. Flowers Avatar
        Ms. Flowers

        You obviously do not live in Manhattan or you would not have such a viewpoint because not a single person I polled thought it should be OK. I’m a big supporter of photographer rights but, no, you should not have the right to shoot from your apartment into mine. If you can see if from the street fine but no one should have to close their shades 24/7 for fear of some creep from the next building is photographing them.
        And the headline of this article is really dumb. It makes it sound like it’s some antiquated law. NYS does not have a statutory right to privacy. What we have is a statute (NY Civil Rights Law 50-51) and the case law has been developed over many years. If you read the decision you will see the court hates the fact that there is no remedy here and basically asks the legislature to do something about it.

  2. Robert Edward Scrivener Avatar
    Robert Edward Scrivener

    Glad to see a judge ruling by law and not personal opinion. Seems hard to come by a man of integrity like that nowdays

  3. Mikko Tapionlinna Avatar
    Mikko Tapionlinna

    I’d draw the line on photographing people inside their private homes without their consent. AFAIK that’s how the law works here in Finland.

    You’re allowed to take photos of people in a public place of course.

    This way photographers can take photos and people can live their lifes without living in “darkness”.

    It does not have to be all or nothing regarding taking photographs.

    Sounds reasonable?

    1. Chris Hutcheson Avatar
      Chris Hutcheson

      I agree. I agree that privacy is important, and that it’s a personal responsibility – on the part of the subject AND the photographer in terms of respecting that privacy. Just because I can see it doesn’t mean I should shoot it.

      1. Jason Wright Avatar
        Jason Wright

        Indeed. I think the minute “tools” that make it not obvious that you are the subject of a photograph or video are used it goes from photography into spying.