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Artist wins case against neighbours he secretly photographed

Appellate court upholds First Amendment rights but encourages stricter privacy laws in future

Arne Svenson, Neighbors #11, 2012

A New York appellate court has reluctantly upheld the rights of the photographer Arne Svenson to exhibit and sell photographs he took of his neighbours without their permission. The unanimous decision by a seven-judge panel is a win for First Amendment advocates. But the court itself seemed uneasy about its conclusion, calling the photographs “disturbing” and encouraging the local government to expand privacy laws that would curtail similar work in the future.

Svenson’s series “The Neighbours”, shown at New York’s Julie Saul Gallery in 2013, captured the daily lives of residents of a downtown luxury apartment building as they ate breakfast, scrubbed their floors and watched television. The Museum of Contemporary Art, Denver, is due to open an exhibition of “The Neighbours” in February 2016. One work from the series is in the collection of Harvard Business School.

The artist, who has likened himself to a bird watcher, monitored his neighbours for more than one year and took thousands of photographs of them with a telephoto lens. (He also consulted a privacy lawyer and watched the Hitchcock film “Rear Window” four times.)

Two residents of the building, Martha and Matthew Foster, sued Svenson after they saw an image of their young children published in a local newspaper article about the series.

A state appellate court reinforced a lower trial court’s decision to dismiss the case on 9 April. The judges concluded that Svenson’s First Amendment rights as an artist outweighed the family’s right to privacy in a city as dense as New York.

Unsettled by the images, the judges also encouraged the state to expand its privacy laws. “Many people would be rightfully offended by the intrusive manner in which the photographs were taken,” Judge Renwick wrote. “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.”

Neither Svenson nor a lawyer for the Foster family immediately responded to a request for comment. Another exhibition of Svenson’s work is on view at Julie Saul Gallery until 30 May. “The Workers”, a sequel to “The Neighbours”, presents close-up images of men engaged in manual labour.

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