June 8 (Reuters) – Space-starved New Yorkers might know
better than to expect privacy in their glass-and-steel
residential boxes. Yet, even by Manhattan standards, an exhibit
by a photographer who used a zoom lens to secretly photograph
his neighbors napping and eating has caused a citywide stir –
and two legal actions, so far.
Photographer Arne Svenson says he ‘started the project after
inheriting a telephoto lens from a friend. He began taking
pictures of the apartments opposite his own Tribeca home in
2012.
Those images are now on show – and for sale at prices of up
to $7,500 per photo – at a Chelsea gallery, where they prompted
a legal complaint from Martha and Matthew Foster, parents of the
young children featured in two of his photographs.
The Fosters said the pictures raised concerns about the
safety of their children as well as fears that they “must keep
their shades drawn at all hours of the day in order to avoid
telephoto photography by a neighbor.”
For the rest of New York, the controversy over the
exhibition has triggered a conversation about First Amendment
rights and just how much privacy city dwellers can expect.
FIGHTING BACK
In the latest development, Svenson is fighting back. On
Wednesday, his attorney filed a motion calling for the New York
county court to throw out the Fosters’ complaint. The motion
argues that the pictures are not illegal and are protected under
an artist’s freedom of expression under First Amendment rights.
Svenson is no longer commenting on the controversy, but says in
his exhibition notes: “For my subjects, there is no question of
privacy The neighbors don’t know they are being photographed; I
carefully shoot from the shadows of my home into theirs.”
The photographs themselves are both abstract and specific,
capturing mundane but intimate moments of domestic modern life.
All are carefully framed to avoid revealing the full faces of
their subjects. A woman in a raincoat stands by the window, her
face obscured by a twisted gold curtain. A man in T-shirt and
jeans dozes on a sofa. An expectant mother is pictured in
profile. The lower halves of a couple in bath robes are caught
breakfasting, their feet touching under the table. Another woman
is crouched near the window, scrubbing the floor or picking
something off the ground.
The Fosters’ complaint details the couple’s distress about
two photos that feature their children. One image shows Martha
Foster holding her 2-year-old son, with her 4-year-old daughter
standing beside her. The girl is in a swim suit; the boy is
wearing a diaper. The document alleges that the minors’ faces
are “clearly recognizable,” which could endanger their safety by
attracting the attention of “undesirable and potentially
dangerous people.”
The plaintiffs say they are “frightened and angered” by the
“utter disregard for their privacy and the privacy of their
children” and the “seclusion and solitude of their homes.” The
complaint adds that Svenson’s conduct is “so out of keeping with
the standards of morality in the community as to evince an
intentional or reckless disregard of its likelihood to cause
severe emotional distress to the Fosters.”
Although Svenson removed the pictures from the exhibition
when contacted by an attorney, the Fosters still want to remove
all remaining pictures from the photographer’s possession, a
permanent injunction against further photographic intrusions,
plus damages and costs.
Svenson’s legal motion of June 5 asserts that neither his
conduct nor photographs violate any New York laws. The document
adds that as the images “were taken through windows that are
fully exposed to the street, they cannot support a claim for
intentional infliction of severe emotional distress.”
With regard to the photos that feature the Fosters, the
motion states that the faces of the parents are not revealed,
the children are obscured and the subjects are in plain view.
“Both photographs capture children at play and the innocence of
childhood, nothing more revealing than you might see in a
neighborhood park,” the document says. It asserts that Svenson’s
images are protected by First Amendment rights and that the
“Plaintiffs should not be permitted to use the Court to attempt
to restrict artistic expressions that they disagree with.”
Julie Saul, the gallery owner and director, told Reuters
that the reaction to the exhibition was a “huge surprise” and a
“tempest in a teapot.” “It really never occurred to me that
there would any of the controversial issues surrounding the work
because historically there have been lots and lots of
photographers who have photographed on the street, through
windows, there’s a whole history of it,” she said.
Mickey Osterreicher, an attorney and general counsel for the
National Press Photographers Association, described the case as
“very interesting.” “Most people have this sense in New York
because everybody lives so close together, because the line
sights are such, that you can very easily look into your
neighbors’ apartment and they can look into yours, but I think
the court may parse this out as looking is one thing and
photographing is another,” he told Reuters.
Osterreicher is concerned that a ruling in this case could
“create more pushback by people who are looking to create an
expectation of privacy even when you’re out in public.” He
thinks this could lead to First Amendment protections being
“chipped away.” Osterreicher believes that this case has been a
negative one for the image of photography and First Amendment
rights due to the “bad taste” that has been left with the
public. The attorney believes that the case against Svenson may
“turn more on the facts of the case than on the actual law.”
While the case remains in the hands of the New York State
Justice system, the issues raised by Svenson’s photographs are
as ethical as they are legal. Saul said: “If it’s an ethical
issue I think it’s about the individual, and the way that Arne
has handled this work is incredibly respectful and ethical.”
Clearly, others disagree.
(Reporting By Edward Upright; Editing by Arlene Getz)
