Photographer Arne Svenson had a Nikon super-telephoto lens. He liked to use that lens to take pictures of his New York City neighbors (including unclothed minors) in their apartments and turn the prints into an art exhibit almost as controversial as Mapplethorpe's in his heyday. And the First Department of New York's Appellate Division stated last week that Svenson's photography show broke no New York law and violated no regulation when he did just that. There were discussions of the First Amendment, of course, but New York's statutes that were addressed, NY Civil Rights Laws 50 & 51 (Right of Privacy), have protections for the Big Apple's professional photographers, artists, and journalists, presumably because their freedom of expression is deemed more worthwhile than the privacy of New York citizens.
As a lawyer, I recognize the importance of the First Amendment, of bringing news AND art to a citizenry that may just as easily seek to suppress that which makes Americans uncomfortable. However, I also believe the First Amendment has its limits. I don't believe that my neighbor's right to create art allows him or her to physically or virtually enter my home without my knowledge or consent and record or depict my children for the artistic enjoyment (or repulsion) of others. But just because I hold this belief does not mean that my belief is enshrined in any law or rule. In fact, it's not.
In the April edition of Entertainment Law Update podcast, Gordon Firemark and Tamera Bennett had a terrific discussion about the many sides to the Svenson case. There was a question whether New York's judiciary was just more liberal with its emphasis on First Amendment. However, it would seem that separation of powers, and not politics was the reason for the decision by the First Department, which included an unusual call to action to New York's legislature to enact laws that protect the privacy of New Yorkers from artists and photographers:
"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... Needless to say, as illustrated by the troubling facts here, in these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists."
Indie and documentary filmmakers who may hope that the dismissal means they can record anyone anywhere are likely to find themselves in a precarious situation: Svenson's best defense was that this exhibit was not a commercial enterprise. A documentary or narrative film sold on iTunes or DVD may not survive the same level of scrutiny as this case. Certainly, securing the consent and knowledge of subjects when possible (with appearance releases drafted by an attorney) would be wiser than exposure to liability, injunction, or even (probably wrongful) arrest.
Furthermore, time may be running out for testing the limits of New York's privacy laws and the First Amendment. A stingy U.S. Supreme Court found in a right of publicity (a right included in NY's "right of privacy" statutes) case Zacchini v. Scripps-Howard that a human cannonball's financial interest in his own performance outweighed the First Amendment rights of a news organization to show the entirety of his performance. We know the highest court in the land recognizes there are limits to freedom of expression. I imagine that the conflicts between various state privacy and publicity laws and federal First Amendment rights will continue to multiply with the advancements of technology, and there will be more calls for redress through legislation or adjudication. Artists, filmmakers, photographers, and journalists ought to have a better idea of where to draw the line. Don't be surprised if a case like this goes all the way to the Supreme Court of the United States.
In the meantime, keep your blinds closed and whisper softly.