Freedom of Speech is one of our most cherished values: #1 on the Bill of Rights hit parade. It is so important that it tends to trump most other laws. Yet, Freedom of Speech is not absolute. It is often limited in ways we do not expect or includes speech some people would think is prohibited, such as the ravings of the Neo-Nazis or the Klu Klux Klan. Supreme Court Justice Oliver Wendell Holmes, Jr. expressed the limitations of free speech when he wrote that “yelling fire in a crowded theater” was not protected speech. On the other hand, many people were surprised when the Robert’s Court decided, in Citizens United, that individual and corporate contributions to political campaigns rose to the level of speech, opening the way for Super PACs and billion dollar campaigns. So when a New York photographer spent a year secretly photographing the Foster family through their apartment window from his apartment across the street, one would not have expected that the photographer’s artistic rights outweighed the family’s Right to Privacy; that is until factoring in the idea that art is speech.
The Story So Far
Arne Svenson, a critically acclaimed fine art photographer, embarked on a project photographing the people living in the building across from his apartment. The building, made mostly of glass, had large windows in each unit. Using a newly acquired high magnification telephoto lens, Svenson began photographing the building’s residents, including the Foster family. The subjects did not know they were being photographed, as Svenson was careful to shoot “from the shadows” of his apartment “into theirs.” Svenson often spent hours waiting for his subjects to pass the window, sometimes yelling to himself, “Come to the window!” After about a year, he compiled the work into an exhibition entitled, “The Neighbors,” which found a home at two galleries; one in Los Angeles and the other in New York. Generally’ the resident’s faces were not visible and, according to Svenson, helped express a commentary on the “anonymity” of urban life, where individuals only reveal what can be seen through their windows.
As an example, the photos included a little girl dancing in her tiara; half-naked. As she turned away, Svenson took a photograph, telling one reporter “I don’t like it when little girls are running around without their tops, but this is a beautiful image.” Despite having obscured the faces, in many of the photos, the family members were identifiable, including one of which showed their son in his diaper and their daughter in a swimsuit; the other showed plaintiff mother holding her daughter.
The Foster family learned of the exhibition and became concerned that two of the photos depicting their “children’s faces and partially clad bodies,” would compromise their children’s safety. The Foster’s sent letters to Svenson and the Manhattan gallery where the photos were being shown, demanding that the children’s photographs be removed. Svenson and the gallery complied with the request, including removing the photos from their websites. Despite Svenson’s compliance, one of the photos made its way onto a New York City TV show and eventually made the rounds to other programs with wider audiences, including NBC’s “Today Show” which not only displayed the photos but also exposed the daughter’s face and the building’s address.
The Foster’s sued Svenson for damages related to Invasion of Privacy and the Intentional Infliction of Emotional Distress. The New York Court dismissed the case, concluding that the First Amendment protected the photographs. The Foster’s appealed, but lost.
Right to Privacy
Privacy is a right that many people think has much more weight that it does. The States grant privacy rights, codifying the laws in statutes that vary in scope from state to state. The boundaries of what constitutes a place of privacy has changed significantly over the years, although the most dramatic erosion of our privacy rights has occurred over the past 30 years. In general, individuals only have a right to privacy in places in where there is a reasonable expectation of privacy; those places that society reasonably expects to be private, such as a bathroom. Conversely, no Right to Privacy is expected in places that are exposed to the public. The rule allows photographers to shoot anything or anyone, which they can see from a public space or a private space for which they have permission and access, even if that subject of the photo is on restricted private property. Artists can capture copyrighted buildings or art displayed in public without being subject to a copyright infringement lawsuit. The same holds true for shooting people, including law enforcement. The caveat is that the photographers or other artists must be able to capture the subject from a legal vantage point, without the use of special equipment not traditionally available to the public.
The rules loosely derive from laws related to the admissibility of evidence in criminal cases. For police to perform a search of someone’s private property, whether it is a car or home, the police must have probable cause obtained without infringing on someone’s privacy rights. Otherwise, the evidence gathered is due to an illegal search and, therefore, inadmissible. In one case, a man was growing marijuana in a greenhouse in his backyard. Police couldn’t see inside the greenhouse from the street, as the walls were somewhat opaque. Without seeing the plants, there was not enough probable cause to convince the court to issue a search warrant. However, the roof of the greenhouse had several broken panes, so the police used a helicopter and binoculars to see the plants in the greenhouse, which gave them the probable cause they needed to get a search warrant. Conversely, in Kyllo v. The United States, the police used an infrared thermal imaging device to scan a suspect’s home from the street. The scan showed that the roof over Kyllo’s garage was unusually hot, which indicated the presence of heat lamps for growing marijuana, and from that evidence, obtained a search warrant, finding the plants and arresting Kyllo. Kyllo sued the government claiming he search was illegal because the use of thermal imaging infringed on his privacy right. The Supreme Court agreed, finding the use of infrared scanning excessive, saying that “when . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.” Today, a decade later, infrared sensing devices are readily available to the public, and so their use may no longer be considered excessive.
What does that mean for Svenson? The court found that there is no expectation of privacy when in a room with large glass windows that can be seen from a building across the street. Anyone can see the family and the family knows this, so they cannot expect their actions to be private. So taking a photo of the Foster’s through their window is no different than taking their photo in a public space. The fact that Svenson used a telephoto lens is not extraordinary. Telephoto lenses as well as telescopes and binoculars are readily available. Sadly, to be assured privacy, one must close the curtains.
However, the fact that Svenson may be allowed to take a photo does not necessarily mean he is allowed to sell that photo because in some States, people have the right to the use of their own likeness and without express permission, for example in a model release, the images cannot be sold. Unfortunately, the Right of Publicity is different in each State and the New York rules are rather limiting.
Right of Publicity
To mitigate the limits on the Right to Privacy, many states have enacted Right of Publicity statutes, which extend the Right to Privacy in certain circumstances. In New York, the Right of Publicity statute makes it illegal to use someone’s name, portrait, picture, or voice, for advertising or trade purposes, without the person’s consent. This includes “any recognizable likeness, not just an actual photograph,” as well as an image that “conveys the essence and likeness of an individual,” even if the representation is not completely photo-realistic.
However, the New York courts have determined that there are several exceptions to the statutory rule; in “publications regarding newsworthy events and matters of public concern” and “artistic expression.” These exceptions are not uncommon. Along with our first amendment Freedom of Speech, the first amendment also provides for the Freedom of the Press. It is in the best interests of a free society to have an open and honest press, and so an exception is provided for the press in many areas of law such as copyright, wherein a news program can used copyrighted materials without permission if the copyright material is important to the story and no more is used than necessary. The same general principle carries over to the Right of Publicity. For example, a TV News program may show a photo of a person wanted for questioning in a criminal matter. If the news couldn’t post the person’s likeness, that would not only make it harder to convey the story properly, but also inhibit the opportunity for a viewer to recognize the person and tell the police where he or she can be found.
The same is true for the Freedom of Speech or Expression. As a society, we don’t want to stifle artistic creativity, free speech or limit the open exchange of ideas, including artistic expression. As one New York court stated; “works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption. … [T]he public, as a whole, has [a] strong interest in the dissemination of images, aesthetic values and symbols contained in the artwork. In our view, artistic expression in the form of artwork must therefore be given the same leeway extended to the press under the newsworthy and public concern exemption to the statutory tort of invasion of privacy. . . Since the newsworthy and public concern exemption has been applied to many types of literature, movies, and theater, it logically follows that it should also be applied equally to other modes of artistic expression. Indeed, works of art also convey ideas.” Additionally, since the images are works of art protected by the First Amendment, any advertising for the art exhibition promoting the artworks is also permitted. The court concluded that “under any reasonable view of the allegations, it cannot be inferred that plaintiffs’ images were used “for purpose of advertising” or “for purpose trade” within the meaning of the privacy statute.”
Some might say that artistic expression shouldn’t override the right to someone’s persona, however, remember that Freedom of Speech is a constitutional right, which overrides State laws. Art is protectable speech which is more important than the privacy or publicity right. Although Svenson’s action may seem egregious, his artistic expression wins.
Although in hindsight, the outcome of this case seems logical, (at least from a legal perspective, not a moral one) it was not easy to predict and could have gone either way. The laws are often vague with conflicting case law from various courts. Some cases, of course, will be clear. Certainly using a subject’s likeness to sell or promote a commercial product won’t be considered artistic expression. As well, if the means of obtaining the images, and the way in which they are used are “atrocious, indecent and utterly despicable,” then the artistic expression exception won’t hold. More often, however, the lines between expression and exploitation are blurred making any outcome heavily dependent on the individual circumstances, the Court which has jurisdiction, and the politics of the presiding Justice.
In this case, while the Court was bound by what it saw as limitations of the Right to Privacy statute, it did express empathy for the Foster’s situation writing, “To be sure, by our holding here—finding no viable cause of action for violation of the statutory right to privacy under these facts—we do not, in any way, mean to give short shrift to plaintiffs’ concerns. Undoubtedly, like plaintiffs, many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the legislature—the body empowered to remedy such inequities.” So until the New York legislature, or any other State legislatures with similar exceptions decide to limit secretly photographing people though windows of their homes, projects like Svenson’s will likely continue. We can only hope that when a photographer does seemingly violate someone’s Right to Privacy, the artist takes the subject’s objections to heart and removes the offending images, just as Svenson did.
What do you think? Let us know in the comments section below.