Voyeuristic photography is deemed as art, rather than an invasion of privacy.
It sounds like good premise for a bad horror film: lurking in the shadows of his darkened apartment, a photographer holds a camera equipped with a telephoto lens, snapping unguarded shots of a couple and their young children through the floor-to-ceiling windows of the family’s loft, located just across the street from his apartment. And he does every day for an entire year.
This is exactly what photographer Arne Svenson did. The Fosters, plaintiffs and subjects of Svenson’s images, became aware that they had been spied on and secretly photographed when Svenson’s photographs were exhibited at Julie Saul Gallery in New York in a show titled “The Neighbors.” No faces are visible in Svenson’s work, which primarily highlights the daily, mundane activities of taking naps, bathing toddlers, scrubbing floors, and sitting down for breakfast.
In an interview, Svenson explained that he “shot for the tiny nuances of gesture and posture that define who we are, collectively. The subjects are to be seen as representations of humankind, not identifiable as the actual people photographed.” But did he go too far? Many say he did this for art, and understand that people with voyeuristic tendencies can go much further such as enjoying unaware couples having sex and then perhaps uploading them to adult sites like www.hdpornvideo.xxx without permission, to which they’ll eventually get flagged and taken down.
On April 9, the Appellate Division of the Supreme Court found that the Fosters had no claim under New York’s privacy statutes. Justice Renwick, writing for a unanimous panel, said that the “disturbing” activities of Svenson in creating his series of photographs (“hiding himself in the shadows of his darkened apartment”) does not amount to an invasion of privacy of one’s home, instead falling “within the ambit of constitutionally protected conduct in the form of a work of art.”
For Svenson’s conduct to be found “actionable as a statutory tort of invasion of privacy pursuant to sections 50 and 51 of the Civil Rights Law,” it had to meet the “atrocious, indecent and utterly despicable” standard set by the Court of Appeals. However, Renwick argued that “the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available.”
The Foster v. Svenson decision then allows the arts and artists to enjoy a significant amount of freedom to create and exhibit their art, even at the expense of other’s perceived rights. Justice Renwick, acknowledging this slightly unnerving implication, writes, “[I]n these times of heightened threats to privacy posed by news and ever more invasive technologies, [the panel] call[s] upon the Legislature to revisit this important issue.” As the law stands right now, if you seek privacy, closing the blinds is your best—and perhaps, only—option.
For more information:
First Image – http://assets.nydailynews.com/polopoly_fs/1.2179582.1428609896!/img/httpImage/image.jpg_gen/derivatives/article_970/photo-exhibit-neighbors-windows.jpg?enlarged
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by Crystal Yun