A New York City judge has ruled in favor of photographer Arne Svenson, who was being sued by the parents of minor children whose photographs appeared in an exhibit entitled “The Neighbors.” In May of this year, Martha and Matthew Foster filed a complaint alleging among other things that Mr. Svenson had violated New York State’s Civil Rights Law by using images of their children without permission for commercial and promotional purposes. They had also sought a preliminary injunction to prevent the dissemination, display and sale of those images.
Mr. Svenson, an artist and photographer, had taken the photos with a telephoto lens from his apartment of residents living across the street and included them in an exhibition at a Chelsea Gallery. That showing led to a number of news articles which in turn brought the issue to the attention of the Plaintiffs.
In dismissing the case, Judge Eileen A. Rakower, denied the Plaintiffs Order to Show Cause for their failure to establish a likelihood of success on the merits. because she found the photos protected by the First Amendment as an art form and shielded from New York’s Civil Rights Law Sections 50 and 51. “Through the photos, Defendant is communicating his thoughts and ideas to the public,” she wrote adding “they serve more than just an advertising or trade purpose because they promote the enjoyment of art in the form of a displayed exhibition.” “The value of artistic expression outweighs any sale that stems from the published photos,” she wrote.
The judge also found that because “art is protected by the First Amendment, any advertising that is undertaken in connection with promoting that art is permitted.” She further found that “‘The Neighbors’ exhibition is a legitimate news item because cultural attractions are matters of public and consumer interest” and that news organizations and broadcasters “are entitled to use Defendant’s photographs of Plaintiffs, which have a direct relationship to the news items – the photos are the focus of the newsworthy content.”
Noting that it might make parents “cringe to think their private lives and images of their small children can find their way into the public forum of an art exhibition, there is no redress under the current laws of the State of New York.” She then concluded by stating, “an individual’s right to privacy under the New York Civil Rights Law sections 50 and 51 yield to an artist’s protections under the First Amendment under the circumstances presented here.”
In a comment regarding the decision, Nancy E. Wolff, who helped represent Mr. Svenson said, “I have always maintained that photos are entitled to First Amendment protection as expressive works, irrespective of whether they are sold or if they are otherwise commercially exploited”
The Plaintiff was represented by Richard G. Menaker, Esq. of Menaker & Herrmann LLP. The Defendant was represented by Nancy E. Wolff, Esq. and Matthew A. Kaplan, Esq. of Cowan, Debaets, Abrahams & Sheppard, LLP