arne svenson.

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The New York photographer who provoked controversy by photographing his neighbors through their apartment windows and exhibiting the images in a show has fended off lawsuit for invasion of privacy. 

New York State court judge Judge Eileen  A. Rakower dismissed the claim against photographer Arne Svenson, ruling that the photos in question were protected by the First Amendment. She also ruled that the images did not violate New York State civil rights laws, as the plaintiffs had claimed.

"An artist may create and sell a work of art that resembles an individual without his or her written consent," Judge Rakower wrote in her decision, underscoring a central principle of the case. 

Svenson, a fine art photographer, used a telephoto lens to photograph people inside apartments in a building adjacent to his own apartment building in the New York neighborhood of Tribeca. The images, exhibited last spring at the Julie Saul Gallery, show the subjects framed by their apartment windows, going about their everyday lives, with their identities mostly obscured.

But the subjects recognized themselves, and among the photographs were images of the children of Martha and Matthew Foster, including one showing the face of one child who was "clearly identifiable," they claimed.

The Fosters sued for violation of their rights of privacy under New York state law, and were seeking an injunction to shut down an exhibition of the work, as well as any future exhibitions or sales of the images.

The Fosters argued that Svenson's unauthorized images of their children were used for commercial purposes--in particular, he was offering the images for commercial sale at a private art gallery, and also using the images to promote the exhibition.

Under New York state law, it is illegal to use a person's likeness for commercial purposes without written consent. But Judge Rakower rejected the Foster's argument on the grounds that New York state civil rights laws "yield to an artist’s protections under the First Amendment under the circumstances presented here.”

She also concluded that Svenson's images were primarily works of art, not advertising or objects for commercial trade, so they weren't in violation of state privacy laws.  ”The value of artistic expression outweighs any sale that stems from the published photos," she wrote in the ruling.

Svenson's series stirred an uproar in the media and blogosphere when the exhibition opened in May. Many New Yorkers were incensed at the idea that someone would photograph them through their apartment windows, and were sympathetic with the Fosters.

Although Svenson won a principled victory for not only himself but other artists, the claim became moot because the exhibition has long ended. Svenson had also removed images of the Fosters' children from his Web site and Facebook page after the Fosters filed their claim, and had pledged not to print or distribute those images in the future. He has also said he's finished with the project, so he's no longer photographing the neighbors through their windows.

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