As we predicted, the NY appellate court has upheld the decision of the lower court in dismissing the claims of persons who were photographed without giving their written consent. See our original piece: One Size Does Not Fit All , for the basic facts.
In this New York case, brought under the New York Civil Rights Law Section 51, the appeals court (correctly in our opinion) held that “… works of art fall outside of the prohibitions of the privacy statute under the newsworthy and public concerns exemption”.
Essentially the court has held that notwithstanding:
- lack of consent by the subjects: and
- that some of the subjects were children, some in various states of undress; and
- the photos were shot surreptitiously from long distances; and
- the subjects were in their own homes/apartments
The thrust of the decision is that the court found that NY law exempted Mr. Svenson – fine art photographer- from the requirement of securing model releases for the images that were sold as “fine art”.
We again caution each and every one of you out there that this case is specific to New York and it’s state law. Assuming identical facts but a different venue ie Alabama, Texas, etc. there would very likely have been a different result. Additionally, whether any such images created would rise to the legal level of “child pornography” and thus exposing the photographer to potential civil and/or criminal penalties is typically determined by state law.
Note also that the appellate court specifically stated that “…news gathering methods may be tortious”. In English, certain techniques or practices can still get one sued.
Finally, this court in effect ruled that the images themselves were not somehow “so outrageous” as to lose 1st Amendment or NY Civil Rights law protection
A copy of the entire decision is here and we urge you to read it: http://law.justia.com/cases/new-york/appellate-division-first-department/2015/651826-13-12998.html
#1 by mcDog on April 12, 2015 - 1:46 am
“This case highlights the limitations of New York’s statutory privacy tort as a means of redressing harm that may be caused by this type of technological home invasion and exposure of private life. We are constrained”
The court is obviously not psyched about the law and neither am I. The legislature needs to act. Unconstrain the courts to remedy future “technological home invasion.” No one in NYC should have to choose between living with the shades down all the time and having some “artist” photograph them for public display.
#2 by Jack and Ed on April 12, 2015 - 3:12 pm
I really don’t disagree, except to say you need all the facts. The legislature would have a hard time to do a broad bill because of 1st Amendment rights. You need to really see what this building looks like. The Zinc Building has massive, floor to ceiling windows and not having shades does sort of puts you on public display to anyone on the street. To me it’s like someone running around naked and then asking you “What are you looking at?” Like we say in the article, while successful in NYC, it may not have been the same outcome in another city or state. Every case has it’s own set of unique facts.
#3 by McDog on April 13, 2015 - 9:39 pm
I’m familiar with the building. And the problem of apartment to apartment photography is hardly unique to The Zinc. People do not want me photographing them from my apartment into their apartment and vice-versa. Do I think the legislature in Albany will act. No. But a narrowly drafted law dealing with above ground level photography from one residence into another would seem doable even with our broad 1st amendment protections. The devil is always in the details with law and I have not thought through the details. Until then I shall try to remember to close the shades.
#4 by Edward C. Greenberg on April 15, 2015 - 5:17 pm
Augmenting the above comment and responding to a question received by me directly:
Were it up to yours truly the statute would allow for the differences inherent in the use of pictures of children as opposed to adults. Additionally, Mr. Svenson -apparently after having been pressured to do so – withdrew one or more photos of a semi naked child dancing in her apartment from the collection.
I would make the educated guess that in most jurisdictions photographing and/or distributing photographs of children below the age of consent, nude or semi nude, photographed with or without the knowledge of the parent or guardian while the child is in a private residence would subject the photographer to criminal or civil liability. I personally would never suggest nor condone such photography be done.
This decision would likely have been different in NY if the children were engaged in some illegal activity or were otherwise being exploited. On these same facts and circumstances a photographer in many, many states would be looking at criminal and civil charges. Personally and professionally it is my opinion that there is simply no excuse for the photographing of children sans clothes and/or without parental consent. No parent can permit the creation of sexually suggestive photos of their children without risking a visit from the authorities ie child welfare. A release giving a photographer consent to photograph nude children in such manner(s) is not likely worth the paper it is written on and no photographer should attempt to take refuge in or rely on such a document.