Citing Free Speech, Judge Dismisses Lawsuit Against Photographer Who Took Secret Pictures of Neighbors

In a striking victory for free speech, a Manhattan trial court judge recently dismissed a lawsuit brought by TriBeCa residents against photographer Arne Svenson after he surreptitiously photographed them in their homes and used the photos in an art exhibit called “The Neighbors”.

Judge Rakower’s August 5, 2013 opinion dismissing the case in Foster v. Svenson, 651826/2013 is here; you can access additional documents in the case here.

Mr. Svenson photographed, from his own apartment, the interiors of apartments in a neighboring building with floor-to-ceiling glass windows.  Some photographs included children.

Plaintiffs sought a preliminary injunction, pursuant to New York Civil Rights Law §§ 50 and 51 and CPLR §§ 6311 and 6313, to prevent the dissemination and display of certain photographs, as well as the dissemination, display or sale in any media of such photographs. They argued that since Mr. Svenson used the photos to promote “The Neighbors” and placed the photos on sale at the exhibition and on a commercial website, defendant engaged in “advertising and trade”, and was hence liable, under Civil Rights Law §§ 50 and 51.

Mr. Svension argued that the exhibit’s photos are protected under the First Amendment as expressive art and, therefore, exempt from the statutes’ application.

The court agreed with Mr. Svenson, holding that:

Simply, an individual’s right to privacy under the New York Civil Rights Law sections 50 and 51 yield to an artist’s protections under the First Amendment under the circumstances presented here.

New York’s Civil Rights Law § 50 provides, in pertinent part:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

New York’s Civil Rights Law § 51 provides, in pertinent part:.

Any person whose name, portrait, picture or voice is used within this state … for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person … so using his name, portrait, picture or voice, to prevent and restrain the use thereof … But … nothing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed.

The court cited the Court of Appeals decision in Messenger v. Gruner + Jahr Printing and Publishing for the proposition that these statutes must be narrowly construed and “strictly limited to non consensual commercial appropriations of the name, portrait or picture of a living person” and that they do not apply to “reports of newsworthy events or matters of public interest”.

Since it was uncontested that the images were taken without consent and that the individuals photographed were not themselves of public interest, the question was “whether the photographs used by the photographer in a show or as examples of his art qualified as a commercial use for the purpose of advertising or trade.”

The court went on to explain how freedom of expression significantly limits Civil Rights Law §§ 50 and 51:

[The statutes] were passed to protect against the commercial appropriation of a plaintiff’s name or likeness. However, the legislature also sought to protect the constitutional right of freedom of expression. In order to avoid a conflict between an individual’s right to be free from unwarranted intrusions and the First Amendment, the statute has a limited application. Thus, while the privacy laws prohibit non-consensual use of a person’s image for advertising [or trade] purposes, advertising [or trade] that is undertaken in connection with a use protected by the First Amendment falls outside the statute’s reach.

Art is considered free speech and is therefore protected by the First Amendment. Accordingly, an artist may create and sell a work of art that resembles an individual without his or her written consent. The use of an individual’s name or likeness in artistic expression is more than a use for the purposes of advertising or trade, and [p]art of the protection of free speech … is the right to disseminate the speech, and that includes selling it.

Further, privacy rights yield to free speech rights in the context of newsworthy events. “Newsworthiness” is interpreted broadly and includes reports of political happenings, social trends and articles of consumer and public interest. This provides news agencies who publicize newsworthy events with immunity from right of privacy claims. In accordance with the values of free speech and free press, where a plaintiff’s picture is used to illustrate an article on a matter of public interest, there can be no liability under sections 50 and 51 unless the picture has no real relationship to the article or the article is an advertisement in disguise.

Judge Rakower then determined that the factors relevant to injunctive relief – likelihood of success, irreparable harm, and balancing the equities – counseled against an injunction:

Plaintiffs cannot establish a likelihood of success on the merits. Defendant’s photos are protected by the First Amendment in the form of art and therefore shielded from New York’s Civil Rights Law Sections 50 and 51. Through the photos, Defendant is communicating his thoughts and ideas to the public. Additionally, they serve more than just an advertising or trade purpose because they promote the enjoyment of art in the form of a displayed exhibition. The value of artistic expression outweighs any sale that stems from the published photos.

Further, since art is protected by the First Amendment, any advertising that is undertaken in connection with promoting that art is permitted. Defendant and the art gallery used Plaintiff’s photos to advertise “The Neighbors;” and the advertising is beyond the limits of the statute because it related to the protected exhibition itself. Further, “The Neighbors” exhibition is a legitimate news item because cultural attractions are matters of public and consumer interest. Therefore, news agencies and television networks are entitled to use Defendant’s photographs of Plaintiffs, which have a direct relationship to the news items – the photos are the focus of the newsworthy content.

Plaintiffs face no immediate irreparable harm in the absence of an injunction. Defendant states in his affidavit that he removed photos of Plaintiff from his website and Facebook page, he will not take any new pictures relating to “The Neighbors”, and does not intend to print, exhibit or publish any of [Plaintiffs’] images in the future. Additionally, the exhibit has ended and the galleries have taken down and ceased sale of the photos. Therefore, Plaintiffs’ photos are not being disseminated, displayed, or sold.

Lastly, a balance of the equities does not favor granting the injunction. While it makes Plaintiffs cringe to think their private lives and images of their small children can find their way into the public forum of an art exhibition, there is no redress under the current laws of the State of New York. Simply, an individual’s right to privacy under the New York Civil Rights Law sections 50 and 51 yield to an artist’s protections under the First Amendment under the circumstances presented here.

The court therefore denied plaintiffs’ request for injunctive relief and granted defendant’s cross motion to dismiss plaintiffs’ complaint.

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