Photograph from Arne Svenson’s “The Neighbors”
Photographer Arne Svenson photographed people in a residential building across from his second-floor apartment in New York City. The images ended up in the Julie Saul Gallery in a show, “The Neighbors,” with prints for sale at up to $7500.
The images in the show drew a huge response by the residents appearing the in photos and, ultimately, led to a lawsuit against Svenson for invasion of privacy.
Last week, that case was dismissed in New York State court by Judge Eileen A. Rakower, who ruled that the images were protected by the First Amendment and that they did not violate New York State civil rights laws barring the use of photos for commercial purposes without a person’s consent. The court order specifically noted that “[a]n artist may create and sell a work of art that resembles an individual without his or her written consent.”
The central question to this case was whether his use of the photographs in an art show qualified as a commercial use or for the purpose of advertising or trade.
Citing existing law, the court noted further, “The use of an individual’s name or likeness in artistic expression is more that a use for the purposes of advertising or trade, and part of the protection of free speech…is the right to disseminate the ‘speech,’ and that includes selling it.”
While the order carries no real precedent weight as a lower level court order, the judge’s analysis of existing case law reaffirms a strong position for photographers whose art includes people in public (or in the view of the public) that may not consent to their photo being captured (I’m thinking specifically about street photographers and paparazzi). Additionally, the use of such images to advertise for art shows is an extension of the artistic expression “because it related to the protected exhibition itself.”
In closing, the court noted, “an individual’s right to privacy under the New York Civil Rights Law…yield to an artist’s protections under the First Amendment….”
All in all, Svenson’s case, although controversial from a moral perspective for some, was a big win for photographers’ rights and artistic expression in general.
I can understand and agree with the positions of the plaintiffs. But, I would expect that the court would hold the position that individuals who wish to guard their privacy should make at least some minimal effort to guard that privacy, such as closing curtains or window blinds, or keeping a reasonable distance from windows or other locations open to public view.
On the other hand, I have heard that photographers who wish to publish people’s images, even unposed, unplanned images, are required to obtain advance formal permissions from those people.
So, where do we stand, here? I think that a proper statement of legal statute is in order.
It’s the commercial use of the image under New York law that would require permission – such as a model release. The court was tasked with answering whether the photographer’s use of the images was commercial. It held that the use was not commercial – even though the images were sold and used to advertising the art show at the gallery.
However, if someone used the images in advertising to sell a product or service (such as Verizon, or whoever), then that would clearly be commercial use and any images of identifiable individual would require a model release under the NY statute in question.
I’m surprised no one told the residents to put curtains up.
The real issue here is as adjudged: “[a]n artist may create and sell a work of art that resembles an individual without his or her written consent.”
Resembles an individual but NOT the individual per se. The image may show some profiles of an individual but not full face where the identity of the photographed person is certain. You will be breaching privacy laws if you sell or advertise or disseminate clearly identifiable features of an individual without his or her consent (Prince William and her wife- the half nude photo case, etc).
Where identifiable features of an individual is photographed for commercial purposes or publication/dissemination, you should be advised to obtain a Model Release and that goes to photographing protected rights as well- symbols (e.g. London Olympic symbols, London Underground trade marks etc), marks, work of art, buildings, etc. There’s an abundance of case laws to nail any photographer that trespasses on individuals’ privacy. Be advised.
“Commercial purposes” and “publication/dissemination” are two entirely different issues when considering photography and privacy laws. In some of Svenson’s images, the individual was identifiable; however, the holding in this case was that there was no commercial use. The public display of these images was not an invasion of privacy though.
In the UK the law is:
“There is no legal restriction on photography in public places, and there is no presumption of privacy for individuals in a public place.”.
However, Using a telephoto lens to take a photo of someone in a private place, such as their home, without their consent is probably an invasion of privacy even if taken from a public place.
Free Speech & Free Artistic Impression is one thing, but it doesn’t protect you from the response. One man can call another man a chump, (Free Speech) but if he gets cracked upside the head for saying it, that is the response risk you take. I Love Photography, but you tread very dangerously in trying to skirt the Spirit of the law vs the letter of the law.