Case Review: Foster v. Svenson (2015)


Arne Svenson, “The Neighbors, # 3” (2012)

By Christopher Visentin*

Following up on a remarkable decision from 2013, this April 9th the New York Appellate Division of the Supreme Court affirmed the Supreme Court’s dismissal of a family’s right of privacy claim in favor of an artist’s freedom of expression.

Two years ago Matthew and Martha Foster filed a complaint alleging breach of privacy against photographer Arne Svenson after learning that they, as well as their two young children, were subjects of Svenson’s series of photographs entitled “The Neighbors”.  For the series, Svenson used a camera with a telephoto lens to capture images of inhabitants of a glass apartment building across the street from his own apartment. Svenson took the photographs without knowledge or permission of his subjects. The Fosters learned of the images through a local publication promoting the exhibition of the photographer’s most recent works.

In 2013, the Supreme Court of New York granted Svenson’s motion to dismiss Fosters’ claims for injunctive relief and damages for emotional distress. Justice Rakower found that the First Amendment protects Svenson’s photography and artistic expression. Therefore, defendant’s conduct was deemed not actionable under the current New York privacy laws. (See Center for Art Law reporting from July 21, 2013 and August 11, 2013.) Fosters appealed.

Last month, on April 9th, the Appellate Division agreed with the lower Court’s decision. Justice Renwick, in her opinion for the Court, noted that under the New York law newsworthy events and matters of public concern have long been exempted under the privacy statute. Justice Renwick also noted that courts have extended this exemption to literature, films, and theater. It follows, she wrote, that the exemption should likewise extend to other forms of artistic expression, here, photography.

But the exemption for newsworthy events and artistic expression is not absolute; Justice Renwick noted that images used for “advertising or trade purpose” do not deserve exemption from the privacy statute. She made clear, however, that even though the Fosters saw the images in a notice promoting the exhibition, and even though Svenson might profit from the images he created, the promotion of the exhibition and any financial benefits relate to the art itself, and therefore the images are not used for “advertising or trade purpose” under the meaning of the privacy statute.

The decision places much importance on protecting freedom of expression, even when the expression constitutes what many people would feel is a clear invasion of privacy. Justice Renwick recognized this tension in her opinion, but she found that the invasion of privacy has to be much more outrageous to weigh against the court’s tendency to protect the public’s interest in the free flow of ideas. Barring such outrageous conduct, it seems that arts and artists enjoy a significant amount of liberty to create and display their art, even when such expression might violate other’s perceived rights, whether they live in glass houses or not.

Justice Renwick acknowledged that some may find the outcome troubling, however, when she stated, “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.” Foster v. Svenson, No. 03068, slip op. at 7 (N.Y. App. Div. Apr. 9, 2015). It may not be surprising, then, when this issue receives more attention in the future.

Note from the editors:


Center for Art Law Mixer at Sundaram Tagore Gallery (May 28, 2015).

On May 28th, Center for Art Law hosted its latest Art/Law Mixer dedicated to photography and the law at Sundaram Tagore Gallery in New York City. In light of the gallery’s exhibition of large-scale silver gelatin prints by Brazilian photographer Sebastio Salgado, the discussion for the evening centered around recent photography case law and its affect on the art and legal worlds. Special guests for the evening included Paul Cossu (Cahill Partners) and Nancy Wolff (Cowan, Debaets, Abraham, and Sheppard LLC). Paul discussed the case his firm handled, Sobel v. Eggleston (2013), where a collector claimed that his limited editions of Eggleston photographs were harmed by the photographer’s later production of prints of the same images in different size and medium. Nancy, attorney for Arne Svenson, the photographer featured in the case review above, discussed her experiences advising and representing Svenson in court. She indicated that case law has evolved and new photography law textbooks may be in order.


About the Author: Christopher Visentin is a rising third-year law student at Boston University, where he concentrates his studies on intellectual property law, art law, and law and literature. He is also pursuing a master’s degree in English literature at Boston University.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers are not meant to act or rely on the information in this article without attorney consultation.

One thought on “Case Review: Foster v. Svenson (2015)

  1. This Ruling will certainly open up a Pandora’s Box for a mountain of future Lawsuits down the road involving the “Right to Privacy”.

    Older readers will readily recall the many controversies surrounding the most famous Paparazzi of all time: Ron Gallela, (now 84), who never hesitated to put his life and/or limbs in serious jeopardy, or his jaw and front teeth at risk, for that matter, for the chance to get that one in a million picture.

    See Wikipedia:

    “Ronald Edward Galella (born January 10, 1931) is an American photographer, known as a pioneer paparazzo. Dubbed “Paparazzo Extraordinaire” by Newsweek and “the Godfather of the U.S. paparazzi culture” by Time magazine and Vanity Fair, he is regarded by Harper’s Bazaar as “the most controversial paparazzo of all time”.

    ……”He immortalized many celebrities out of the public eye and gained notoriety for his feuds with some of them, most notably Jacqueline Kennedy Onassis and Marlon Brando. Despite the numerous controversies, Galella has been cited by Andy Warhol as his favourite photographer.

    “Galella is widely known for his obsessive treatment of Jacqueline Kennedy Onassis and the subsequent legal battles associated with it. The New York Post called this “the most co-dependent celeb-pap[arazzi] relationship ever”.

    “The famous 1972 free-speech trial Galella v. Onassis resulted in a restraining order to keep Galella 50 feet (later changed to 25 feet) away from Mrs. Onassis.”

    Of course some readers no doubt may argue that being a “paparazzo” is different from doing what photographer Arne Svenson was accused of doing.

    I am not sure I can buy that argument. Certainly Matthew and Martha Foster do not buy that argument.

    What if Arne Svenson’s camera had caught one of them on the “potty” and/or in the act of making Love. If that is not a serious invasion of people’s privacy, I do not know what would be.

    While in the famous case of Ron Gallela, he was ordered to stay 50 and later 25 feet away from Mrs. Kennedy, with the maximum power telephoto lenses of today, one can get so close to his/her subject that he could be positioned hundreds of feet away and still capture a “Beauty Mark” on someone’s… (take your choice).

    Some may be aware that a Paparazzo from a boat once captured Jacqueline Kennedy at one of her retreats, (standing in front of her Summer Villa) full frontal position in her “birthday suit”, down to the last mid-body detail/s.

    I feel certain had that telescopic lens photo ever been reproduced on a magazine cover, there likely would have been one less photographer in the world.

    Stay tuned. As Bette Davis famously quipped in one of her greatest and most memorable roles, as Margo Channing in “ALL ABOUT EVE” :

    “Fasten your seatbelts, its going to be a bumpy night! ”

    We may soon need more Courtrooms and Judges. Lawyers ? I highly doubt that. The Law Schools seem to never cease churning them out with cookie cutter precision and regularity.

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