In a remarkable decision, New York Supreme Court Justice Eileen Rakower dismissed a case against Arne Svenson, a photographer who took pictures of his Tribeca neighbors through the windows of their apartments and exhibited them in a Chelsea Gallery. (See Center for Art Law, July 21, 2013.) Martha and Matthew Foster, parents of two young children who appeared semi-clothed in some of the photographs, sued Svenson to obtain possession of all of Svenson’s photographs, negatives, and digital files of their children, for an injunction against further photographic intrusions, and for damages for emotional distress. Svenson filed a motion to dismiss, claiming freedom of expression under the First Amendment.
In a decision that flies in the face of widely-held beliefs about the right to privacy and the reasonable expectation of privacy in the privacy of one’s own home, Justice Rakower sided with the defendant. She wrote that the family’s right to privacy had to yield to an artist’s protections under the First Amendment under the circumstances presented. “While it makes the plaintiffs cringe to think that 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.” Rakower said that the closing of the exhibition and Svenson’s promise to scrub his Facebook page and website of images of the Fosters’ children figured into her dismissal of the suit, no doubt cold comfort to the plaintiffs, who had stated they “fear that they must keep their shades drawn at all hours of the day in order to avoid telephoto photography by a neighbor.”
According to Mickey Osterreicher, 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…But what happens when you live in a glass house?”