Case Review: Foster v. Svenson (2015)

May 29, 2015

By Christopher Visentin

Following up on a remarkable decision from 2013, this April 9th the New York Appellate Division of the Supreme Court affirmed the Supreme Court’s dismissal of a family’s right of privacy claim in favor of an artist’s freedom of expression.

Two years ago Matthew and Martha Foster filed a complaint alleging breach of privacy against photographer Arne Svenson after learning that they, as well as their two young children, were subjects of Svenson’s series of photographs entitled “The Neighbors”.  For the series, Svenson used a camera with a telephoto lens to capture images of inhabitants of a glass apartment building across the street from his own apartment. Svenson took the photographs without knowledge or permission of his subjects. The Fosters learned of the images through a local publication promoting the exhibition of the photographer’s most recent works.

In 2013, the Supreme Court of New York granted Svenson’s motion to dismiss Fosters’ claims for injunctive relief and damages for emotional distress. Justice Rakower found that the First Amendment protects Svenson’s photography and artistic expression. Therefore, defendant’s conduct was deemed not actionable under the current New York privacy laws. (See Center for Art Law reporting from July 21, 2013 and August 11, 2013.) Fosters appealed.

Last month, on April 9th, the Appellate Division agreed with the lower Court’s decision. Justice Renwick, in her opinion for the Court, noted that under the New York law newsworthy events and matters of public concern have long been exempted under the privacy statute. Justice Renwick also noted that courts have extended this exemption to literature, films, and theater. It follows, she wrote, that the exemption should likewise extend to other forms of artistic expression, here, photography.

But the exemption for newsworthy events and artistic expression is not absolute; Justice Renwick noted that images used for “advertising or trade purpose” do not deserve exemption from the privacy statute. She made clear, however, that even though the Fosters saw the images in a notice promoting the exhibition, and even though Svenson might profit from the images he created, the promotion of the exhibition and any financial benefits relate to the art itself, and therefore the images are not used for “advertising or trade purpose” under the meaning of the privacy statute.

The decision places much importance on protecting freedom of expression, even when the expression constitutes what many people would feel is a clear invasion of privacy. Justice Renwick recognized this tension in her opinion, but she found that the invasion of privacy has to be much more outrageous to weigh against the court’s tendency to protect the public’s interest in the free flow of ideas. Barring such outrageous conduct, it seems that arts and artists enjoy a significant amount of liberty to create and display their art, even when such expression might violate other’s perceived rights, whether they live in glass houses or not.

Justice Renwick acknowledged that some may find the outcome troubling, however, when she stated, “Many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature.” Foster v. Svenson, No. 03068, slip op. at 7 (N.Y. App. Div. Apr. 9, 2015). It may not be surprising, then, when this issue receives more attention in the future.

Note from the editors:

On May 28th, Center for Art Law hosted its latest Art/Law Mixer dedicated to photography and the law at Sundaram Tagore Gallery in New York City. In light of the gallery’s exhibition of large-scale silver gelatin prints by Brazilian photographer Sebastio Salgado, the discussion for the evening centered around recent photography case law and its affect on the art and legal worlds. Special guests for the evening included Paul Cossu (Cahill Partners) and Nancy Wolff (Cowan, Debaets, Abraham, and Sheppard LLC). Paul discussed the case his firm handled, Sobel v. Eggleston (2013), where a collector claimed that his limited editions of Eggleston photographs were harmed by the photographer’s later production of prints of the same images in different size and medium. Nancy, attorney for Arne Svenson, the photographer featured in the case review above, discussed her experiences advising and representing Svenson in court. She indicated that case law has evolved and new photography law textbooks may be in order.

Sources:

• Foster v. Svenson, No. 03068 (N.Y. App. Div. Apr. 9, 2015).
• Raffi Khatchadourian, Stakeout, The New Yorker, (May 27, 2013), http://www.newyorker.com/magazine/2013/05/27/stakeout
• Hili Perlson, Voyeuristic Photographer Arne Svenson Wins New York Appellate Court Case, artnet news (Apr. 10, 2015), https://news.artnet.com/art-world/arne-svenson-neighbors-photographs-supreme-court-286916
• Eugene Volokh, N.Y. Court: Legal to Surreptitiously Photograph People in Their Homes, and Sell Those Photos, Wall Street Journal (Apr. 10, 2015), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/10/n-y-court-legal-to-surreptitiously-photograph-people-in-their-homes-and-sell-those-photos/
• Jesse Woo, Foster v. Svenson, When Privacy and Free Speech Collide, Washington Lawyers for the Arts (Jan. 9, 2014), http://thewla.org/foster-v-svenson-when-privacy-and-free-speech-collide/

About the Author: Christopher Visentin is a rising third-year law student at Boston University, where he concentrates his studies on intellectual property law, art law, and law and literature. He is also pursuing a master’s degree in English literature at Boston University.