Art law News USA

Judge upholds artist’s right to photograph unsuspecting neighbours

The case highlights the hazy definition of privacy rights in dense cities like New York

Arne Svenson, from the series "The Neighbors". Photo: © Arne Svenson

New York’s Supreme Court decided last week that the photographer Arne Svenson was within his rights to display and advertise a series of photographs he took of his neighbours without their permission. In May, a local couple sued Svenson for violating their privacy after recognizing their young children in two of the images. The judge Eileen Rakower dismissed Martha and Matthew Foster’s suit on 1 August, writing that the family’s right to privacy “yields to an artist’s protections under the First Amendment in the circumstances presented here”.

Svenson spent a year and a half observing his neighbours with a telephoto lens as they ate breakfast, read and watched television in the glass building across the street from his Tribeca apartment. “For my subjects there is no question of privacy,” Svenson wrote in an artist statement. “I am not unlike the birder, quietly waiting for hours, watching for the flutter of a hand or the movement of a curtain as an indication that there is life within.”

Days before the photographs went on view at the Julie Saul Gallery in Chelsea, the Fosters spotted an image of their children in a local newspaper article about the series. Svenson agreed to remove the photographs of the couple’s children from his website and from the exhibition. As part of their lawsuit, the Fosters also sought to compel the artist to surrender any remaining images of their children to the court and pay damages for causing them emotional distress. “Plaintiffs now fear that they must keep their shades drawn at all hours of the day in order to avoid telephoto photography by a neighbour,” they said in the suit.

The judge concluded that “while it makes plaintiffs cringe to think their private lives and images of their small children can find their way into the public forum of an art exhibition, there is no redress under the current laws of the State of New York”. She added that publications and advertisements could reprint Svenson’s images: “Since art is protected by the First Amendment, any advertising that is undertaken in connection with promoting that art is permitted,” she wrote. A spokesperson for the family said an appeal is being considered.

The lawsuit highlights the shifting definition of privacy in dense cities like New York, experts say. While a photographer’s right to take pictures of people on the street without express permission is well documented, Svenson’s case was less cut-and-dry, according to Mickey Osterreicher, the general counsel for the National Press Photographers Association. “There is an axiom that your home is your castle—a place where you are entitled to a reasonable expectation of privacy,” he notes. “But what happens when you live in a glass house?”

Despite—or perhaps because of—the controversy surrounding the series, Julie Saul Gallery sold approximately 15 prints from the exhibition, which closed on 29 June. One is now in the art collection of Harvard Business School.

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5 Sep 13
22:26 CET


I don't think the state judge made the correct interpretation regarding "freedom of speech." That's a stretch. A few of the photos are somewhat artsy, if you consider everyday activities as art, but, come on, at the expense of people's privacy? Really? I'm a photographer and would never consider doing that in the name of art.

2 Sep 13
19:33 CET


What Arne Svenson did was not that reprehensible. In fact, I think it's really beautiful. Art is all about exploring the world around you and that's exactly what Mr. Svenson did with his camera. Personally, I would not feel like a victim if he took my picture, I'd be honored, because he took a moment of my life that I thought was inconsequential and he made it monumental, something worthy of being seen. As a final note, these people have blinds. If it's so important for them to keep the world out, they don't have to let the world in, but who wants to live life with their blinds closed?

22 Aug 13
15:20 CET


I'm shocked. This is pure voyeurism. The judges decision takes away the victims right to privacy within their own 4 walls. Where will it go from here? We all have glass windows in our house. Where will the line be drawn? I agree with Ms. Kuschner. I think the judge would have seen things much differently if the artist had been exposing her private life to the world. I hope the victims win their appeal.

19 Aug 13
22:39 CET


This is disgusting! I think the judge would think very differently if it was him or her being spied on daily with every intimate moment exposed to the world! The victims must fight this abuse of their right to privacy in their own home!

16 Aug 13
16:9 CET


As a photographer for 60 plus years I find it abhorrent that anyone would claim being a "Peeping Tom" is Art. Life has taught me that anyone has a right to privacy! This should come under the "Peeping Tom" rule for anyone looking into someone else's home. As a photographer, your work cannot be art just because you say so! Where are the model releases so important in preventing anyone's photo being used without their permission? How can the Gallery get away with distributing/selling recognizable images of anyone without a model release? I hope the family appeals and wins. Shame on you Arne Svenson for giving honest photographers such a reprehensible image to live down!

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