A visitor views the photography of Arne Svenson on Thursday, May 16, 2013 at the Julie Saul Gallery in New York. Residents of a New York luxury apartment building are upset over the exhibition by Svenson who secretly made their pictures from his window across the street. (AP Photo/Bebeto Matthews)

From yesterday’s New York intermediate appellate court decision in Foster v. Svenson (paragraph breaks added):

Defendant Arne Svenson is a critically acclaimed fine art photographer whose work has appeared in galleries and museums throughout the United States and Europe. Beginning in or about February 2012, after “inheriting” a telephoto camera lens from a “birder” friend, defendant embarked on a project photographing the people living in the building across from him.

The neighboring building had a mostly glass facade, with large windows in each unit. Defendant photographed the building’s residents surreptitiously, hiding himself in the shadows of his darkened apartment. Defendant asserts that he did so for reasons of artistic expression; he obscured his subjects’ faces, seeking to comment on the “anonymity” of urban life, where individuals only reveal what can be seen through their windows. After approximately one year of photography, defendant assembled a series of photographs called “The Neighbors,” which he exhibited in galleries in Los Angeles and New York.

The exhibit’s promotional materials on defendant’s website stated that for his “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.” Defendant further stated that “The Neighbors” did not know they were being photographed, and he “carefully” shot “from the shadows” of his apartment “into theirs.” Defendant apparently spent hours, in his apartment, waiting for his subjects to pass the window, sometimes yelling to himself, “Come to the window!”

A reporter for The New Yorker magazine spent time with defendant while he was surreptitiously photographing his subjects. During this time, defendant took a photo of a “little girl, dancing in her tiara; half naked, she looked like a cherub. As she turned away, [defendant] took a photograph. I don’t like it when little girls are running around without their tops,’ he said, but this is a beautiful image.” …

Despite defendant’s professed effort to obscure his subjects’ identity, plaintiffs’ children [then aged three and one] were identifiable in these photographs, one of which showed their son in his diaper and their daughter in a swimsuit; the other showed plaintiff mother holding her daughter….

Plaintiffs sued, but they lost. Though a state statute “prohibits the use of a person’s … ‘name, portrait, picture or voice’ … for advertising or trade purposes,” that has been limited to exclude “publications regarding newsworthy events and matters of public concern,” including “artistic expression.” These photographs, the court held, are therefore not covered by the statute (paragraph break added):

Defendant’s used of the photos falls within the ambit of constitutionally protected conduct in the form of a work of art. While a plaintiff may be able to raise questions as to whether a particular item should be considered a work of art, no such question is presented here. Indeed, plaintiffs concede on appeal that defendant, a renowned fine arts photographer, assembled the photographs into an exhibit that was shown in a public forum, an art gallery.

Since the images themselves constitute the work of art, and art work is protected by the First Amendment, any advertising undertaken in connection with the promotion of the art work was permitted. Thus, 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.

Now this, I think, would surely have been right as to pictures taken when the subjects were in a public place. But here the subjects were in their open apartments (albeit in front of a window), and they were photographed with a telephoto lens.

The court concludes this is not relevant under state law:

[P]laintiffs argue that defendant’s work should not be entitled to First Amendment protection because of the manner or context in which it was formed or made. In essence, plaintiffs seem to be arguing that the manner in which the photographs were obtained constitutes the extreme and outrageous conduct contemplated by the tort of intentional infliction of emotional distress and serves to overcome the First Amendment protection contemplated by [New York law].

[New York’s highest court] has set a high bar for what constitutes outrageous behavior in this context. In Howell v New York Post Co, 81 NY2d 115, 123 [1993], the plaintiff was a patient at a private psychiatric facility who alleged that it was critical to her recovery that no one outside of her immediate family know about her commitment. A New York Post photographer trespassed onto the secluded grounds of the facility for purposes of capturing images of Hedda Nussbaum, who had been prominently thrust into the public eye a year earlier when her boyfriend Joel Steinberg murdered her daughter.

Using a telephoto lens, the photographer took pictures of Nussbaum, who happened at the time to be strolling the grounds of the facility with the plaintiff. When the pictures were published in the newspaper, the plaintiff claimed … that her statutory right to privacy had been violated and that defendants had intentionally inflicted emotional distress on her.

The [high court] held that the newsworthy and public concerns exception applied to bar the privacy claim because the Nussbaum affair was a matter of public interest and the photographs were directly related to the story. It rejected the plaintiff’s contention that her presence at the facility was not newsworthy, since it was the fact of Nussbaum’s interaction with the plaintiff that demonstrated Nussbaum’s path to recovery from the physical and emotional abuse she had suffered at the hands of Steinberg.

Notably, in dismissing the plaintiff’s claim for intentional infliction of emotional distress as being “an end run around a failed right to privacy claim,” the Court observed that the “defendants acted within their legal right.” The Court further said:

“Courts have recognized that newsgathering methods may be tortious (see, e.g., Galella v Onassis, 487 F2d 986, 995 [2d Cir 1973]) and, to the extent that a journalist engages in such atrocious, indecent and utterly despicable conduct as to meet the rigorous requirements of an intentional infliction of emotional distress claim, recovery may be available. The conduct alleged here, however — a trespass onto Four Winds’ grounds — does not remotely approach the required standard. That plaintiff was photographed outdoors and from a distance diminishes her claim even further.”

The quoted language … strongly suggests that expression will not lose entitlement to the newsworthy and public concerns exemption … unless the means by which a person’s privacy was invaded was truly outrageous. Indeed, while one can argue that defendant’s actions were more offensive than those of the defendant in Howell, because the intrusion here was into plaintiffs’ home, clearly an even more private space, they certainly do not rise to the level of “atrocious, indecent and utterly despicable.”

Further, the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available.We note that defendant’s conduct here, while clearly invasive, does not implicate the type of criminal conduct covered by Penal Law § 250.40 et seq., prohibiting unlawful surveillance.

That may be sound under New York law, but in most states photographing someone in their home with a telephoto lens would indeed be tortious, under the “intrusion upon seclusion” tort; as the Restatement notes,

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

[Comment b:] The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff’s room in a hotel or insists over the plaintiff’s objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires….

New York’s high court has refused to recognize this tort, or other privacy torts, saying “in this State the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law; we have no common law of privacy.” But the New York Legislature can certainly recognize such a claim by statute; indeed, the appellate court in this very case so suggests:

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.