We have both been getting questions from photographers looking for a one-size fit all answer to questions. Many people quote a specific case to support their flawed business practice or disregard of the law. We have always tried to emphasize that many examples and many situations are very much case dependent, meaning the answers are very specific to a very specific situation. A great example is the recent decision in NYC of a photographer selling prints of images he shot into other people’s apartments.
For those not familiar to this case, here are the basic facts:
Fine art photographer, Arne Svenson set up a camera in his Manhattan apartment, located in the trendy Tribeca neighborhood. Armed with a 500mm bird watching lens, he photographed his “neighbors” in the new and modern high rise building, The Zinc Building, across the street from his building. The photos were all shot through the open (or unobstructed) floor to ceiling windows of his neighbor’s loft apartments, without their knowledge. Think of Jimmy Stewart in Alfred Hitchcock’s famous movie “Rear Window”, except without the murder mystery. The images, printed very large, were shown at the Julie Saul Gallery at a show he cleverly titled “The Neighbors”. Printed in limited editions of 5, they sold reportedly for up to $7,500 each.
There are many stories of this case throughout the Internet if you Google it, such as this one.
The “neighbors” needless to say, were not happy, even though there were no faces shown in any of the images. An action was brought against Mr. Svenson by one set of the parents whose children he had photographed. No model releases were obtained or existed. The parents sought to bar the publication/sale of the photos, on a theory based on an outrageous breach of morality and privacy. They also requested that the images been given or delivered to them so that Mr. Svenson would not retain any copies.
Not surprisingly, Judge Eileen Rakower ruled in favor of Mr. Svenson and dismissed the suit. The judge relied in her decision to a great degree on the 1st Amendment rights of the artist to create. Additionally, In New York State a model release is not required to sell fine art images containing the portrait, image or likeness of an individual. These images could not however, be employed for the sale or promotion of goods, services or the promotion of an organization without the subjects’ written consent. Fine art is excepted from this New York Law (NY Civ. Rts. Law Sec. 50,51) We are not surprised by the decision and Jack has been willing to bet anyone a cold Ben & Jerry’s on the outcome ever since the case hit the press. He even did podcast interviews early on, with Rick Sammon and with Frederick Van Johnson on “This Week in Photography” stating that he was doubtful any lawsuit by the neighbors would prove successful.
So why are we bringing this story? Because this is a New York case decided under New York Law by a New York State Court judge. Assume these very same facts but the site of the events was say Alabama or Texas or California or Florida. The results could well have been very different. State laws control matters such as these. In some states some judges could hold that the photographer’s creating images of especially children, in the sanctity of their own home without the knowledge or consent of the parents constituted a crime and/or would subject the shooter to a civil lawsuit. Do not assume that the result in this case would be the same in your state. This case would likely have little to no weight in a litigation occurring in any other state or territory of the United States.
As we’ve been saying often, in nearly all model release cases are state sensitive and state laws vary. There is no one size fits all answer to these complicated situations where competing federal and state constitutional rights collide. So while this is a great result for photographers, never assume that this gives you license to do something similar. One size does not fit all.