Photography, Privacy, Privacy Tort Law, Publicity Rights, First Amendment


INTRODUCTION Quietly reading a book by a window in your apartment isn’t necessarily a “private” act. Many living in densely packed locations like Manhattan inevitably wonder whether eyes peering through telescopes or watching digital camera screens find them, linger for a time, capture images or generate fantasies about who and what they are. That appropriation reality popped into public view in 2013 when Martha and Matthew Foster discovered images of themselves and their children, Delaney and James, in Arne Svenson’s photography exhibition The Neighbors mounted at the Julie Saul Gallery in the Chelsea district of Manhattan. The Fosters lived in a modern glass walled building—The Zinc—in northern TriBeCa. Arne Svenson lived across the street in a second floor loft at 125 Watts Street.★ He used a telephoto lens equipped digital camera to take pictures of the Fosters and others living in The Zinc while staying in the shadows of his own abode. The Fosters sued Svenson and the Julie Saul Gallery, making privacy and intentional infliction of emotional distress claims. They sought damages and an injunction requiring removal of two pictures of their family from public and electronic display. “According to the Fosters,” Barbara Pollack wrote in ARTnews, “Svenson is nothing more than a Peeping Tom, invading their privacy and exploiting their profiles for commercial gain.” The Fosters lost their motion for preliminary relief in the trial court, a result recently affirmed on appeal. Most of the pictures in The Neighbors exhibition are, at least in the eyes of this viewer, aesthetically pleasing. The emotional responses of some of those in Svenson’s photographs, however, were understandably testy. The Fosters were not the only upset residents. Mariel Kravetz, also a resident of The Zinc, invited Jennifer Bain, a New York Post reporter, to come to her apartment in The Zinc building to snap pictures of Svenson’s abode across the street. Though Svenson was not visible during the photo shoot, a medical model in his window was.★ A photo taken during Bain’s visit later appeared in the newspaper. She reported that Kravetz found the effort to be sweet revenge because Kravetz was “horrified” to find out that she appeared in two displayed photos in Svenson’s show. Kravetz was also concerned he took more pictures of daughter: “‘What does he have that we haven’t seen?’ Kravetz asked Bain. ‘He probably took thousands or more. I have a young daughter. It’s more than me. Does he have any of her? That’s my biggest concern.’” Svenson’s explanation of his actions—framed from a perspective denying the authenticity of any privacy claims—may have stoked the anger and anxiety of the Fosters and Kravetz. In a blog about The Neighbors exhibit published shortly before the show opened, he was quoted as saying: For my subjects there is no question of privacy; they are performing behind a transparent scrim on a stage of their own creation with the curtain raised high. The Neighbors don’t know they are being photographed; I carefully shoot from the shadows of my home into theirs. I am not unlike the birder, quietly waiting for hours, watching for the flutter of a hand or the movement of a curtain as an indication that there is life within. The consequences of the dispute may be visible on-site. When I walked by the buildings on the afternoon of March 16, 2015, most of the window shades and curtains were drawn in the apartments facing Svenson’s. A peek at a Google Street View image of the same site in June, 2011, however, shows that many of the windows were uncovered. Whether that is a result of Svenson’s actions is impossible to know without speaking to the residents.★ But it would hardly be surprising that some residents would respond by hiding themselves behind window coverings. This dispute raises a host of difficult social, cultural, and legal questions. All of the many friends and colleagues I chatted with about the Svenson exhibition expressed some form of anxiety, creepiness, or worry. But they also had difficulty articulating the basis for their concern. Some worried about the intrusive nature of such photography only to opine that it wasn’t very different from being on a street or in a subway when a professional camera wielder clicks off shots for a coming gallery show. Others wondered why their likenesses should be the source of funds to an artist before commenting that professional photographers must have a great deal of leeway in picking their subjects and deciding what to publicly display. Many wanted to know if the pictures revealed moments of sexual intimacy or nudity. When I said they did not and added my opinion that many of them were quite beautiful, the reaction often was, “hmmmmmm . . . .” A few articulated feelings of creepiness only to partially retract them by opining that New Yorkers expect to be watched in their apartments by all types of eyes when their shades are up or their curtains are open. In short, puzzlement and consternation were routine. This Article is a preliminary effort to unravel some of the perplexity. It is only fair to say at the outset, however, that firm, bright line resolutions are difficult to discern. I begin with an historical journey. The first stop is the famous Warren and Brandeis article, The Right to Privacy, published a century and a quarter ago in the Harvard Law Review. The authors complained about the ways photographers and newspaper reporters “invaded the sacred precincts of private and domestic life” and overstepped “the obvious bounds of propriety and of decency.” The distant echoes of Warren and Brandeis’ lament resound in the protests made by Kravetz and the Fosters to Svenson’s The Neighbors exhibition. But almost one hundred twenty-five years passed between the publication of The Right to Privacy and the mounting of The Neighbors. Any inquiry into the legal cogency of the Foster claims therefore must venture into the ways photographic technology, artistic trends, and cultural changes have influenced the creative presentation of moments “appropriated” from the lives of strangers. That is the second stop in this Article’s journey. I conclude in the third and final part by using the historical inquiries as a baseline for thinking about the ways legal norms changed over the course of the last one hundred and twenty five years and for meditating on the wisdom of changing those norms again.