Is it legal for Arne Svenson to sell photos taken of people in their glass-walled apartments? Yes, it is.

by feldmanwallach

By Ian Wallach, www.feldmanwallach.com

People who live in glass houses shouldn’t whine their pictures are taken. Get some curtains.

There is a public outrage now in New York City about photographs sold at the Julie Saul Gallery. The pieces are by New York City artist Arne Svenson, who is selling photos he took from his apartment window – into the curtain-less windows of a people in a glass apartment building in (he is not showing faces).

11 years ago I argued Hoepker v. Kruger, 200 F.Supp.2d 340 (2002) which addressed some of these issues.

Is his conduct legal? Yes. Even if it’s offensive. First, it’s not criminal conduct. It’s not a criminal Right of Privacy violation. NY. Civil Rights Law, Section 50, provides that “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.” But Svenson’s photo-taking is for the purposes of art — First Amended Protected conduct. It would be different if it was used to sell widely-marketed T-Shirts, cups, etc. But this is for the limited purpose of artwork, so it’s not a violation.

And there isn’t a Peeping Tom Statute that could apply. New York law criminalizes using a camera to secretly photograph people who have a reasonable expectation of privacy – but no one can claim that they have a reasonable expectation of privacy in front of a wall made of glass.

Is there a potential civil case that those photographed could bring and win? No. NY. Civil Rights Law, Section 51 provides civil damages for this conduct. But a plaintiff would not win here. First, it is first amended protected conduct (artwork for sale on a limited basis). Second, the value of the work stems from the artist — Arne Svenson — and not the value of the likeness of the subject. For example, since no one’s face is shown, people are buying the photo because its artwork (and, more importantly, Svenson’s artwork). But if an artist were to shoot a picture of Sting, and sell thousands of shirts with that photo, Sting could successfully sue, because people would be buying it because it’s a picture of Sting – not because it’s the work of the photographer.

So what can be done if this is offensive?

If this conduct offends you — don’t buy the artwork. Tell others not to buy the artwork. And otherwise, because faces aren’t shown and no one knows who is who, try not to be bothered.

Oh, and go buy some curtains.

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