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Svenson was sued by his Tribeca neighbors in 2013 after they discovered he’d photographed them inside their New York apartments with a telephoto lens — a tool more frequently used by paparazzi than by fine art professionals.
The images were part of a controversial series called The Neighbors that the photographer began shooting in 2012. It featured people — and sometimes pets — lounging and moving about in their homes. Svenson told Hyperallergic that his aim was to capture “vignettes of quietude” — not to record his neighbors’ actions.
“I was stringent about not revealing the identities of the subjects because I was not photographing these people as specific, identifiable personages, but more as representations of human kind, of us,” he said. “I only reveal the turn of the head, the back against a window, the legs under a table. These tiny scenarios and actions reveal a humanness that is unconsciously truthful and tender.”
The resulting images do reflect Svenson’s conceptual aims. They’re silent, poetic, and filled with a strange sense of yearning. They seem to have far more in common with the paintings of Edward Hopper than they do with celebrity tabloids.
But whatever their artistic merit, the plaintiffs were understandably rattled by the knowledge that someone had been secretly photographing them inside their apartments.(Svenson himself acknowledged that, save for the occasional dog, no one ever noticed him in his apartment clicking away.) They claimed he had invaded their privacy under New York’s right-of-privacy statue, which makes it illegal to use a person’s likeness for advertising or trade purposes without permission. Since the work was sold in galleries, they argued the law should apply. They also said Svenson should not be protected by the First Amendment, since creating the images involved “extreme and outrageous conduct” and caused his subjects emotional distress. Finally, they asked for monetary damages and that the court stop Svenson from showing the images in the future.
New York State court judge Judge Eileen A. Rakower dismissed the claim in 2013, ruling that the photographs did not break New York State civil rights laws and were protected under the First Amendment. “An artist may create and sell a work of art that resembles an individual without his or her written consent,” she wrote. The plaintiffs appealed, only to have Judge Rakower’s ruling unanimously upheld and reiterated by the appeals court this month.
Despite the outcome, Judge Dianne T. Renwick called Svenson’s actions “disturbing” and “intrusive.” She wrote: “Needless to say, as illustrated by the troubling facts here, 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.”
For his part, Svenson told Hyperallergic that he doesn’t think privacy laws should be amended. “I am an artist and stand firmly for creative expression and the First Amendment. I would not have spent the last two years in court if I believed otherwise,” he said, adding that “social media, banks, internet companies, etc., know far more about the occupants of the building than I ever would learn through the process of taking photographs of their hands, backs, and legs.”
He also said he’d have no problem with it if he found out a neighbor had been taking similar photos of him in the name of art. That statement illustrates what the ruling affirms: in the end, it’s all left to an artist’s personal convictions, which change from person to person depending on values and motivations, and which his subjects or audience may not share.
Svenson’s own loyalties lie with purity of narrative. Asked whether he ever considered staging his images, as Gail Albert Halaban did in her series Paris Views, he said that while it’s a “viable process,” it wasn’t for him. “I think narrative nuance and truth can be diluted when action is being directed,” he explained. “I prefer to wait until a scene has fallen into place organically and then let serendipity takes its course.”
And yet, regardless of Svenson’s intentions and what is deemed legal, was it ethical for him to photograph his neighbors without their consent for his own artistic benefit? Is continuing to show the images a form of bullying, wherein art takes precedence over people’s distress? Or, on the other hand, could anyone really be so bothered by his images? The people in them seem anonymous enough.
Whatever the answers, the case is closed for Svenson. A show featuring his latest series has just opened at the Julie Saul Gallery, where The Neighbors debuted. Titled The Workers, it features construction workers similarly caught, entirely unaware, behind glass, face masks, and plastic tarps.