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.
#1 by Matt Timmons on August 13, 2013 - 4:42 pm
The biggest crime of all is that anyone would spend $7,500 for a photo of an apartment, much less a gallery actually curating it. It takes no talent to “create” this, and it certainly once again brings up the question, what exactly defines “fine” art? So far the only definition I can find is when someone is willing to pay exorbitant amounts of money for something that requires no talent, skill, effort or vision. It’s more of a gross display of how much money someone has to waste. I guess I don’t understand the super-weathly world where they’d gladly spend a fortune on a blurry snapshot of a cigarette butt and receive praise for it.
#2 by Jack and Ed on August 13, 2013 - 5:01 pm
Matt, I have to disagree. Waving this off as “no talent, skill, effort or vision” is a disservice to all photographers. Just because you don’t understand or appreciate it, doesn’t mean it’s worthless. I’d greatly disagree that it’s without vision. I’ve seen photographers trash other photographers because they don’t “get it”, same way as people trash artists like Van Gogh or Warhol or Jasper Johns, and so on.
There is a language to fine art work and you should try to learn it.
There is a lot of fine art photography I don’t like, but I can still appreciate it.
Seeing Picasso’s studio and how he traveled from a traditional artist to the abstract artist is very interesting.
BTW, $7500 for a print is not at all at the higher end of what fine art prints go for. I have friends that sell well into 5 figures for a print.
I guess I get upset when photographers undercut the value of other photographers work and them bitch and moan when the public dismisses work in the exact same way.
“Why so much for your photo!!?? All you did was press a button!”
Jack
#3 by Edward C. Greenberg on August 13, 2013 - 7:37 pm
Several decades ago a photographer (now long out of the business) bolted a camera to the roof of his/her car and pointed it to give the point of view of a passenger in the back seat looking out a back window. The camera did not pivot.
When motoring, the photographer had the camera on “automatic” and timed to take a picture every X minutes – no matter what. If the photographer wanted to take a picture at any given moment he/she could do so from the driver’s seat but generally refrained from exercising any creative judgment and just let the automatic timer make the camera take a shot every X minutes.
The prints created in such manner sold very well and for high prices. No one ever knew how the shots were created and that other than bolting the camera to the roof of the car and setting a timer and pressing the “automatic” button, the photographer “contributed nothing”. The unsold shots helped make the trip(s) tax deductible. The photographer did this for several years and then stopped rather than risk the “exposure” of blowing a good thing. Monies from sales of the prints help to fund retirement.
Moral/ethical/artistic question – if you had admired or purchased one of these shots and now found out how it was created would it change your view? Do you think it affects the intrinsic value of the shot? Viewing any of these prints there is no way the observer could possibly know that they were created without the photographer so much as looking through a camera or even being aware of the contents of any image when shot.
#4 by Wayne on August 14, 2013 - 3:40 am
Sense California was specifically mentioned I thought that I would point out that in California there is the potential for not only the photographer be held for civil damaged from this stunt but there is a chance for criminal damages also. California civil code 1708.8 also seems to allow for the studio where these photographs were sold to be held liable also. all in All it would seem to this non attorney that the laws are very different here than in NY. However noting the well documented situation of prison overcrowding in California I very much doubt that there would be any punishment other than a fine and possible civil censure of the images and possibly equipment.
#5 by Matt Timmons on August 15, 2013 - 3:39 pm
Guys, guys, I don’t assess the value of a photo by how much trouble it took to shoot it. I’m expressing my opinion and the only way I may be out of line is in the context of my disgruntled view of the fine art world. Placing the word “fine” in front of art doesn’t augment it’s worthiness, there is only “art”. It’s analogous to placing the word “better” in front of “art” simply to raise the price. If I don’t think a particular art is brilliant, I’m not wrong anymore than someone who appreciates it is right. There is no doubt that anyone can judge art. But which is responsible for it’s value? The art itself or the viewer?
If there’s truly a fine art language that I’m not getting, then I challenge someone to teach it. This would open up a whole new multi-million dollar market to the struggling photographer. No longer is a cigarette butt on the subway a piece of litter, if shot blurred and clicked to monochrome, critics will praise it and the wealthy will pay a fortune for it. Then again, maybe every photograph ever taken is fine art, but the people who shot them just don’t have access to the right cocktail parties and therefore aren’t worthy of the status.
I never complain about what people think about my work, because maybe it’s crap and maybe it’s genius. Maybe it’s the worst photo ever taken and maybe it’s the greatest photo ever taken. It all just depends on who’s looking at it and I give them their full right to their opinion. There is no linear judgement scale unto which we all place our work and see what ranking it gets. No “blue book” value based on context. When I view my own work, all I see is how much improvement is needed. Gone are the days of Ansel Adams and Avadon when context and darkroom techniques were the works of years of practice and artist development. This is the age of “anyone can do this now”. So when I read a story about a guy lounging in his swanky Tribecca apartment shooting whatever his expensive zoom lens can pick up across the street and placing high price tags on it; it’s my opinion that it isn’t a long time practice and dedication to a sophisticated visual presentation that affords the value set on his work, but rather what cocktail parties he regularly attends that gains him a wealthy audience. Maybe smarter or luckier, but not “finer”. You guys are still my heros by the way. 🙂
#6 by KenB on August 18, 2013 - 11:33 pm
I think that Mr. Svenson was taking a very high risk with this foray into fine art. People do expect a certain level of privacy when in their home regardless of whether the curtains are drawn or not. There are people who don’t put so much faith in the court system and handle these sorts of incursions in a more personal way. ie: He coulda had some problems with two busted legs and some painful bruises from a coupla guys jus makin’ a point.
#7 by Jack and Ed on August 19, 2013 - 10:34 am
Ken- As we always say, these things have to be looked at individually and are very fact dependent. Most people who do not live in NYC feel the way you do, but if you could stand on the street here and see what these buildings like the Zinc building look like when you just stand on the street, you’d exclaim “Holy (something of your choice), that’s a fishbowl! How do people live like that!” The windows are not just big, they are HUGE- very wide, floor to ceiling. And when lit at night, it’s like being an exhibitionist. Living in one of these is the difference between a 14 inch TV screen and a large theater movie screen.
You are basically “imposing” the view on people. I can’t “unsee” it when I walk down the street. You can control what people see using blinds and discretion. So what expectation of privacy?
Plus Mr. Svenson wasn’t “foraying” into fine art. He has a track record and the gallery is an established fine art gallery.
BTW, in the same thread, there is a couple in Brooklyn, labeled “not unattractive” by neighbors, who installed an outdoor glass shower in their backyard. NY, NY.
#8 by wayne on August 19, 2013 - 8:00 pm
An outdoor glass shower, sounds like couple of exhibitionists at there best.
#9 by Edward C. Greenberg on August 20, 2013 - 12:21 pm
Adding to what Jack says above…in NYC and many other traditional urban downtown areas which contain residences, the inhabitants frequently let their guard down. If you live on the 10th, 20th or even 50th floor residents tend to be lulled into a feeling that no one is (or can be) watching.
Having said that 2 real life anecdotes come to mind. Jack and I played in a poker game in a photo studio located in Union Square and owned by Stuart Gross. Loft space, 6th floor, big windows. We walk in to find all players (male and female) with their noses pressed up against the glass. Across the street and down the block were two women enjoying themselves after a nude art session apparently oblivious to the fact that thousands of people had a clear view of their amorous doings.
My client came from a traditional Italian family where single young women simply did not move out of the house until married or in college. She moved out and lied to her mother who was born in Sicily and some 70+ years old. Daughter invites mom over to a nice tiny studio apartment off Park Ave. to break the news. 6th floor apt. has a great view of the Empire State Building so daughter plans for mom to come over at dusk to “catch the view” and thus soften the bad news to come. Drapes are closed. Mom shows up. Daughter opens drapes to give mom “drop dead” dramatic view of NYC skyline. Mom indeed gets a drop dead impressive view – of the couple across the street engaged in “adult” activity on a Lazy Boy recliner. Their apartment had about the same amount of ambient lighting as say any network news set.
Urbanites either forget that they are view able from a multitude of angles or don’t care relying on the supposed anonymity of the urban dweller. As a photographer creating such an image you need to care as your ability to publish such an image can get you into quite the legal morass, civilly and/or criminally such that even if you “win” you lose by paying lawyers big buck and suffering many a sleepless night. If any of the subjects in an image is a minor, you may have likely opened a legal can of worms about the size of Wyoming.
Final point and for those of you who think this is overly cynical – trust me I have seen far worse than this – don’t discount the possibility that there are people who place themselves in compromising positions and IF photographed jump for joy at the chance of suing and reaping a windfall.
#10 by Edward C. Greenberg on August 20, 2013 - 7:07 pm
Wayne – the glass shower in Brooklyn referenced by Jack turns out to be a semi-urban myth. Corrected by NY Magazine just today after a flurry of uncontradicted reportage. It is apparently an unfinished, unused bathroom which the owners and architect insist has never been used. And will be correctly covered when done. Countless people nevertheless has apparently spread the urban myth that it appeared the “not unattractive” couple was seen in the shower and the media repeats and repeats in our ears.
First rule of the media is once again proven correct – First reports are always wrong.
#11 by Wayne on August 25, 2013 - 3:30 pm
ed thank you for the update on the “outdoor shower” However considering that it is in the back of the property and in NYC (please keep in mind that I am in California) It just doesn’t affect me (I do wonder just how long of a camera lens it would take to capture that photo though). I also of the opinion that Kansas had the correct idea when the state legislature chose to require three things be proven to have an indecent exposure case 1) that the person charged had in fact been exposed, 2) that this exposure was to someone who had not consented and 3) that the intent was to sexually arouse. This way Mr/mrs ‘Wee know what is proper for you’ cannot clam that I was indecently exposed to them while they were peeking in my bathroom shower. Whether the curtain was fully closed or not.
#12 by Edward C. Greenberg on September 11, 2013 - 6:21 pm
Well Wayne I have to tell you that factor #3 above can be litigated until the cows come home, drink a 6 pack and watch a 22 inning KC Royals game. Lawyers and judges can fight over whether something is “intended to sexually arouse” another person without breaking a sweat.
How’s this for some ambiguity – if the viewer of the image is a pedophile and registered sex offender, having molested (only) children and the photo shows nude adults, given the viewer’s proclivities he might have an excellent defense that naked adults NEVER arouse him. Conversely the shooter may not have intended for the pedophile to view the picture rather hoping to show it to his girlfriend to spice up the evening. Upon showing the photo to his girlfriend she was so disgusted that she threw his butt out of her home.
Intent to sexually arouse? Brews on me if you can get two women and two men to agree on that definition. Thanks for the up date. Each state is going to have its own struggles with this issue.
#13 by James Mahoney on May 2, 2014 - 2:15 pm
What’s the deciding factor for jurisdiction in cases like this?
Since state law varies so much, is it where the shot was made? Is where the shot is offered for sale a factor (e.g., galleries in NY, California and London, England representing the shot)?
For example, if some of the people in one of Mr. Svenson’s shot were visitors from, say, California, would/should/could they sue in Cal where they reside, or NY where the shot was made?
Conversely, if he made similar shots in California, returned to NYC, and a friend of the subjects subsequently saw the photo of them in a gallery in NY, where would they pursue their case?