As discussed in our prior articles (here, here, and yet again here) residents of an apartment building in the uber trendy Tribeca area of Manhattan, sued fine art photographer Arne Svenson for photographing them without obtaining their consent. Svenson had photographed residents including partially unclothed children, while in their own apartments. There was no dispute that Svenson neither obtained model releases nor even notified the subjects in any way that he was creating such imagery in a surreptitious manner.
One resident with young children sued Mr. Svenson under New York law and as we predicted, lost. We cautioned you not to accept this New York court’s ruing based on New York law as being applicable to any other state in the Union. State laws on these scenarios vary wildly and as we opined previously, we have little doubt that under the same facts in other jurisdictions the photographer could be subjected to civil and/or criminal penalties. Selling photographs of nude or partially nude children under the guise of “fine art” is not an argument anyone wants to make in 21st Century America. We note here again the Mr. Svenson pulled some of the photos of children from the market.
Plaintiffs claimed Svenson violated Sections 50 and 51 of the New York Civil Rights Law which essentially requires a written, signed model release for use of an image to promote, advertise or sell a product, service, entity or brand. The statute, is addressed to trade and commercial use – not editorial or fine art use. Svenson successfully argued that the creation, sale and marketing of fine art photographs does not constitute advertising or trade and is thus was not covered by either Sections 50 and/or 51. The court concurred with Mr. Svenson and the case against him was dismissed.
The appellate court predictably upheld the decision citing (among other things) Mr. Svenson’s First Amendment right to freedom of speech. New York’s privacy statute does not require written consent of a subject to appear in a newsworthy article or editorial piece matters of legitimate public concern. There was nothing surprising to us about the decisions from the New York courts.
The plaintiffs also alleged that Svenson’s conduct justified their claims. They cited to laws in other states in making those arguments. They also claimed that Svenson’s conduct was so outrageous that the court should step in to stop him from benefiting commercially The photos were clearly taken in an intrusive manner which under NY Law had virtually no significance whatsoever. But the court “suggested” that the New York legislature look to change the law as currently written. Some states are far less tolerant of invasive techniques used to violate perceived privacy rights than others. (It is our opinion that if the subject images included children having sex rather than “just” being partially naked, a very different decision would have been reached by the NY court).
As a result of this case, a bill seeking to amend Sections 50 and 51 of the New York Civil Rights Law has been introduced. Read it here for yourself: Bill A.07804, S. 0583.
This bill which would amend the current law would subject a person to liability both civil and criminal, if they knowingly recorded or captured a visual image of another person within a dwelling and where the subject has a reasonable expectation of privacy therein. The photographer in that scenario could be sued in the same manner as a photographer who employs an image, photo, portrait or likeness of a person for trade or commercial purposes without obtaining the written consent of that person.
It is Ed’s opinion that the proposed bill is if nothing else, a boon for lawyers. It creates a whole new genre of image creation which could result in lawsuits. Whether this bill as written would in practice reduce the number of truly offensive, invasive scenarios of persons being photographed in compromising situations is unknown. We expect to comment more extensively on the bill in the coming weeks and we welcome your thoughts on the matter.
It is worthwhile to note that Mr. Svenson’s fine art images have found plenty of buyers at very high price tags. We think that we would all be better off if there was no market for images created in such tawdry and questionable circumstances. But alas money talks and big money screams.