U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Peeping, but for Art: Voyeuristic Photos OK, New York Court Rules

Arne Svenson, a visual artist, created a series of photographs, entitled "The Neighbors," by using a telephoto lens to photograph the residents of the building across the street from him. His photos capture people at mundane and intimate moments like napping on a couch or scrubbing a floor. The neighbors, who did not know they were being photographed in their homes and did not consent to having their images displayed, sued, alleging the works violated their privacy rights.

A New York appellate court sided with the artist last Friday, finding that the artistic expression is constitutionally protected and exempt from the state's privacy law.

Your Nap Is of Public Concern, if It's Art

New York is a voyeuristic town. As dense as the city is, it's more common than not that the average apartment window will look out almost directly into its neighbor's. An open curtain is an invitation to look inside -- or at least that's the argument Svenson made on his website, writing, "There is no question of privacy; they are performing ... with the curtain raised high."

New York's privacy statute prohibits using photographs of someone, without their consent, for advertising or trade purposes. Does that prohibit artistic use? For the first time, the court said no. Artwork falls under the exception for "newsworthy events and matters of public concern." Though one might not think a napping Manhattanite is newsworthy, the court found the art to express "informational value" that is of public interest -- that is, an aesthetic point of view.

Not the First Lawsuit of its Kind

In upholding the exhibit, the court looked back at the similar case of Philip-Lorca diCorcia, a photographer who made his career by capturing unstaged, surreptitious images of street life. In 1999, he photographed unaware New Yorkers as they walked through Times Square. He was sued by Erno Nussenzweig, who argued that the use of his image violated his privacy and his religious belief rights. The case was dismissed as time-barred, but a concurrence said that the public expression of the ideas and concepts in the artwork was fully protected free speech. With this recent decision, the appellate court agreed. It noted, however that the artistic exception is narrow -- artistic expression must be central, not incidental to the work.

For photographers, who have long sought to capture intimate "slice of life" images, the court's ruling affords their work a new layer of protection. For New Yorkers with large windows and nearby neighbors, the decision may be reason to invest in a good pair of curtains.

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