Grossman LLP | Appellate Court Upholds Dismissal of Invasion-of-Privacy Claims Against Photographer Arne Svenson
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  • Appellate Court Upholds Dismissal of Invasion-of-Privacy Claims Against Photographer Arne Svenson
    Last week, a New York appellate court upheld the dismissal of invasion-of-privacy tort claims against photographer Arne Svenson for his 2012 photography series, “The Neighbors.”  The decision marks an important development concerning the intersection of art and privacy laws.

    “The Neighbors” opened in 2013 in New York’s Julie Saul Gallery featuring photographs taken from inside Svenson’s apartment using a telephoto lens of Svenson’s neighbors across the street inside their homes.  According to Svenson, he was seeking to comment through these works on the “anonymity” of urban life.  Svenson’s website, in describing “The Neighbors,” states that for his subjects, who lived in a mostly glass building, “there was no question of privacy; they were performing behind a transparent scrim on a stage of their own creation with the curtain raised high.”

    Plaintiffs learned through media coverage of Svenson’s exhibition that they and their children had been his unwitting subjects.  They then filed suit in New York Supreme Court against Svenson alleging violations of New York’s Civil Rights Law §§ 50 and 51, among other things, and seeking a preliminary injunction enjoining the dissemination and display of these photographs.  Sections 50 and 51 of the Civil Rights Law prohibit the use of a person’s “name, portrait or picture” or “name, portrait, picture or voice” for advertising or trade purposes without permission.  However, New York courts have long held that the privacy statute should not be applied to publications regarding newsworthy events or matters of public concern because “such dissemination or publication is not deemed strictly for the purpose of advertising or trade within the meaning of the privacy statute.”

    In August 2013, Judge Rakower denied plaintiff’s motion for a preliminary injunction and granted a cross-motion by Svenson, dismissing the complaint.  The court found that the photos were protected by the First Amendment as art and therefore were shielded from New York’s Civil Rights Law for invasion of privacy.  See Martha G. Foster v. Arne Svenson, No. 2013/651826 (Sup. Ct. N.Y. Co., Aug. 5, 2013).

    Last week, the Appellate Division, First Department affirmed the lower court’s decision, upholding the dismissal of the complaint.  See Martha G. Foster v. Arne Svenson, 2015 N.Y. Slip Op. 03068 (1st Dep’t).  The appellate court unanimously agreed with the lower court’s finding that any invasion of privacy was not a violation of New York’s Civil Rights Law “because defendant’s use of the images in question constituted art work and, thus is not deemed ‘use for advertising purposes,’ within the meaning of the statute.”  The court reasoned that “the informational value of the ideas conveyed by the art work is seen as a matter of public interest” and “the public, as a whole, has an equally strong interest in the dissemination of images, aesthetic values and symbols contained in art work.”  Thus, “artistic expression in the form of art work must therefore be given the same leeway extended to press under the newsworthy and public concern exemption to the statutory tort of invasion of privacy.”

    Although Svenson was able to escape liability under the privacy laws, the court observed that the conduct was “disturbing” and “troubling” and called upon the Legislature to revisit this issue due to the “heightened threats to privacy posed by new and ever more invasive technologies.”  Perhaps one day, therefore, photography like Svenson’s might no longer be exempt from liability under New York’s privacy laws.  Until then, photographers—and their neighbors—should remain mindful of the current state of the law as articulated by this recent decision.