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Arne Svenson, “Neighbors #15” (image courtesy Julie Saul Gallery NYC)

Last week, a New York State appeals court upheld a lower court ruling that exonerated photographer Arne Svenson against claims of privacy invasion, Photo District News reported.

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.

Arne Svenson, “Neighbors #11” (2012) (image courtesy Julie Saul Gallery NYC)

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.

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Laura C. Mallonee

Laura C. Mallonee is a Brooklyn-based writer. She holds an M.A. in Cultural Reporting and Criticism from NYU and a B.F.A. in painting from Missouri State University. She enjoys exploring new cities and...

57 replies on “Artist Who Furtively Photographed His Neighbors Wins in Court, Again”

  1. Agree, these are some great pictures. And I can sympathize with the squick factor in learning one has been photographed while unaware, but really… a window is a window, not a wall, and just as it lets you see out, it lets others see in. –I think this controversy just adds another layer of context to the work which makes me like it even more.

  2. It may be technically legal to do what he did, but the artist’s freedom of expression argument is one often invoked by people who want to justify treating others as objects they can use as they wish (especially online these days). To such people, their ability to express themselves is all that matters, despite how the objectified other feels about it. To those who say, “close the shades,” I imagine the windows were at such a distance and height from the street they had no idea they were being stalked from a great distance with telephoto lenses, and that’s not an unreasonable expectation of the subjects. I also agree with the judge that the law needs to be revised. If he was making those photos for publication in a magazine or advertisement, he’d have to obtain a model release. The fact that they are sold in an art gallery and not to an ad agency is a distinction that’s lost on me. This isn’t just “speech,” it’s business.

    1. Buildings are not that far apart in New York. People probably didn’t think about it. Svenson made a good point in saying “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.”

      1. I live in a single family home in the suburbs. I don’t draw the blinds in the daytime when I’m moving about my home because I want the sun to come in. That means my next door neighbors could theoretically glance out the windows of their house and see me doing my dishes or watching TV. I’m fine with that. I’d feel differently if they were stalking me with a camera with a telephoto lens and one day I discover the photos are on display in an art gallery. I guess I’m saying I empathize more with the subjects than the photographer in this case. Just because you CAN do something doesn’t mean you should. We all have opportunities to steal something that doesn’t belong to us, or otherwise abuse the trust of others, probably every day. Why don’t most of us? Because we don’t want to live in that kind of a world. As for Svenson’s point about social media, etc., I’m not buying that rationalization either. What I post in social media is my choice. As for banks, Internet companies and the like, they have privacy policies, and they aren’t supposed to share your information with third parties without your permission. Remember when Facebook got into trouble for using people’s photos in ads? They backed off of that fast.

        1. Stealing is a crime, Helen. What Arne did is not a crime, and the court upheld that fact. You are arguing ethics, and according to your ethics, you don’t think it is right. But that is just your ethics, and they are not shared by everyone, including me. You also misunderstand Elizabeth’s point– that we are photographed and video taped many times every day without our knowledge or permission, and we don’t know what is happening with those images. Arne’s project highlights that fact.

          1. That is such a facile art-pass excuse. They don’t highlight anything, they perpetuate it. He chose a soft target and has victimised them by taking away their right to feel safe and relaxed in their own home. These are real people. I’m so sick of the mentality that this kind of “transgression” illuminates anything. It’s not true and it’s patronising. We all know about the erosion of privacy. What he has done will impact on these people’s lives and psyche and its gross. You can’t challenge a problematic social structure by increasing its stronghold – as he has through this legal precedent.

          2. Stop acting like you are distressed for the unidentifiable people in the photos. That is the only thing that is patronizing here. Your manufactured outrage is just plain silly.

          3. It’s not manufactured. I would absolutely hate i if someone did this to me, and I still have the ability to empathise, so yes, I feel distressed for them that a court of law told them that they had no right to expect differently. It’s a shame it’s so difficult for you to fathom that my concern for them as people could be genuine.

            Also as a practising artist, I’m pretty disgusted by his lack of ethics- you can call them personal, but I mean the professional type that would get you past a funding body governed by your peers. This wouldn’t. Hence why I called your excusing it handing out the art-pass (read: what unethical artists use to legitimise shonky project that they’ve made really just because they want to, and because it might get them some press).

          4. You are making a whole lot of assumptions, Leanne. I’m a professional artist, too, and a gallery director. What decent artist DOESN’T make art because they want to? What a strange criticism. How exactly were these unidentifiable people harmed? The fact that you are so aware of his work, that you have put so much time into thinking about it, that it has raised such passions in you, is proof that the work is a success. Not all art must be safe and unprovocative.

          5. I actually assumed you were an artist. So I did make an assumption, but not the one you assumed I had. Of course all artists make work because they want to, however when I talked about the professional ethics of artists (a direct response to your insinuation that the ethical problems Helen raised were purely personal), risk of and/or harm to others is very high on the list. That harm can be physical, mental, emotional. He’s inflicted at least two of the above. My “because they want to was” too brief, I should have added irrespective of ethic/harm. I thought in the context you would read between the lines. I hope this provides sufficient clarification.

            However I think our views of at and ethics are fundamentally opposed. You seem to think exposure is what makes a work successful, and at whatever cost. I absolutely don’t. You also seem to think that speaking out on an issue within your professional group, means the person causing the issue has somehow garnered your interest or respect. This is an oddity of the art world. I would have far more time for the neighbours than the artist. I would liken my engagement in this dialogue to speaking out for a person who had been harassed in my workplace: I’m here to support them not him.

            Sorry that’s it for me. I have a thesis to write and and install to think about.

          6. The assumptions you are making are not about me being an artist, it is about you putting words in my mouth and then debating those invented words instead of the ones I actually wrote.

            Art is about communication. It is about making people feel something. The role of art in society is to question, to hold a mirror up to itself and help that society understand itself better. Those feelings are not limited to happy, warm, reassuring ones. They can challenge, make us question our standards, our ethics, our assumptions, and our attitudes. This is exactly what he has caused you and others to do. Thus, Svenson’s art has succeeded.

          7. didn’t put any words in your mouth. Took the time to thoughtfully reply to this:

            ” How exactly were these unidentifiable people harmed? ” REPLIED
            “The fact that you are so aware of his work, that you have put so much time into thinking about it, that it has raised such passions in you, is proof that the work is a success.”

            REPLIED AND REJECTED

            I agree with the semantics in your statement about (part of ) what art can do. I don’t agree that the art in question does that. Therefore I don’t agree it has succeeded. Further, I don’t agree with a modus operandi which doesn’t hold artists accountable to any ethical standards in the treatment of other living entities. As to whether they have suffered, it’s not about what you think, or what I think, it’s about how they feel – and obviously to go through this they do feel victimised. Like I said, fundamentally opposed.

          8. “It’s a shame it’s so difficult for you to fathom that my concern for them as people could be genuine.”

            WRONG ASSUMPTION AND PATRONIZING. Someone so concerned about the feelings of others should not be patronizing.

            “you can call them personal, but I mean the professional type that would get you past a funding body governed by your peers.”

            SHOW ME WHERE I USED THE WORD “PERSONAL”. WRONG ASSUMPTION.

            “You seem to think exposure is what makes a work successful, and at whatever cost.”

            NEVER SAID ANYTHING LIKE THAT. PUTTING WORDS IN MY MOUTH AND MAKING WRONG ASSUMPTIONS.

            “You also seem to think that speaking out on an issue within your professional group, means the person causing the issue has somehow garnered your interest or respect.”

            NEVER SAID ANYTHING ABOUT RESPECT. WRONG ASSUMPTION AGAIN.

            Now that I have thoroughly proved you wrong, let me also say that the very fact that you are posting so much shows that this work has had an impact on you. It is causing people like you to weigh freedom of speech versus right to privacy.

          9. “It’s a shame it’s so difficult for you to fathom that my concern for them as people could be genuine.”

            WRONG ASSUMPTION AND PATRONIZING. Someone so concerned about the feelings of others should not be patronizing.

            Responding to:

            ” Stop acting like you are distressed for the unidentifiable people in the photos.”

            and

            “Your manufactured outrage is just plain silly.”

            So your assumption my empathy for these people is manufactured….
            ———————————————————————–
            “you can call them personal, but I mean the professional type that would get you past a funding body governed by your peers.”

            SHOW ME WHERE I USED THE WORD “PERSONAL”. WRONG ASSUMPTION.

            Ummm..here: Your = personal possessive pronoun

            “You are arguing ethics, and according to your ethics, you don’t think it is right. But that is just your ethics, and they are not shared by everyone, including me.”
            ————————————————————————-
            “You seem to think exposure is what makes a work successful, and at whatever cost.”

            NEVER SAID ANYTHING LIKE THAT. PUTTING WORDS IN MY MOUTH AND MAKING WRONG ASSUMPTIONS.

            You said this: “The fact that you are so aware of his work, that you have put so much time into thinking about it, that it has raised such passions in you, is proof that the work is a success.”

            Aside from the fact that lots of the most ethically questionable art works are well known for exactly that reason, in this case there are real people who have been hurt, and you have deemed the work justifies that.
            ————————————————————————-
            “You also seem to think that speaking out on an issue within your professional group, means the person causing the issue has somehow garnered your interest or respect.”

            NEVER SAID ANYTHING ABOUT RESPECT. WRONG ASSUMPTION AGAIN.

            Well I said, interest or respect. You are continuously saying I’m interested in the work, and I repeat: I’m here for the victims. The inclusion of (or) respect was again based on your saying:

            “The fact that you are so aware of his work, that you have put so much time into thinking about it, that it has raised such passions in you, is proof that the work is a success.”

            So the type of professional respect for successful work (strong, challenging ethical work, not this stuff).
            ————————————————————————-
            “Now that I have thoroughly proved you wrong, let me also say that the very fact that you are posting so much shows that this work has had an impact on you. It is causing people like you to weigh freedom of speech versus right to privacy.”

            Actually at this point it is your comments that are having an impact on me, again not a good one, but you’re right, I should stop. It’s totally pointless. You can’t even seem to remember what you’ve said when it’s written down.

          10. Wow, Leanne. I prove you wrong line by line, and you can’t handle it, and reply with thin arguments, and then end with the entirely rich put down that I can’t seem to remember what I’ve said, when I just proved that it is YOU that can’t remember (or rather, conveniently forget). This has become redundant.

      2. The artist may say that but the difference is the participants voluntarily gives that information to social media, banks, internet companies, etc… I would have major problems with this…

        1. How, exactly, do I voluntarily give information to all those cameras everywhere at intersections, in stores, in parks, etc? And in the very common practice of selling people’s personal information (I run a business and have the option to buy people’s demographics, emails, interests, and family make up for $100 for every 10,000 in any designated zip code), where is the consent?

      3. Who cares what he says? We all know that. This project is not about the greater good. He has essentially harassed these people and then commodified them without consent and against their protest. The attitude of privileged entitlement and disregard for their emotional welfare disgusts me as an artist and a human being capable of empathy. People before profit should apply to artists too…

        1. I can only assume you equally damn Henri Cartier-Bresson, Dorthea Lange, Walker Evans, Bruce Davidson, Bill Owens, Martin Parr, Joel Meyerowitz, Gary Winogrand, and Nan Goldin. Most of their best known work was taken of identifiable people without their consent.

    2. Really appreciate your assessment of the situation. It seems very clear to me it’s an invasion of privacy.

  3. Enough laws! Copy-wright laws are primarily supposed to prevent copies! One part of an artist’s job is to record and express the visual world around them. These beautiful photos are successful to that aim.

    1. Hmmmmm. So (yet) another beautiful image justifies inflicting emotional suffering on real people? This will change how the feel and function in the world. I’m an artist. I think it’s really poor form. Agree with Helen. Just because you can doesn’t mean you should

      1. Just because you can attack Dixie for daring to have an opinion that differs from yours doesn’t me you should attack her. She is, after all, a person.

        1. Asking a question and disagreeing is not attacking Chris. Actually not sure how you could call this that.

          1. Fair enough. Change the word “attack” with “scold”. Dixie did not give consent for you to scold her for having an opinion, for publicly shaming her (and yes, “Just because you can doesn’t mean you should” is a shaming comment). I’m not saying you are wrong for writing a comment, I am saying you are contracting yourself in doing so.

          2. By showing a different perspective and questioning her position I am contradicting myself? Stretch. Even for that to make sense I would have to concede that that is what the work in question does (which I absolutely don’t), and further to that I’m focussing on the victims- yep, that’s what I’d call them- and you are determined to argue this work is more important than them. I reject that.

          3. You are unable to see your own words, and you continue to insist on inventing arguments never made and then debating them.

  4. I am ok since he doesn’t show faces… But what restraint will the next “artist” show, with this legal decision? Boundaries are ‘meant to be broken’, and provocation sells. Curtains won’t stop Infrared photography!?

    1. It is better than it could be because he doesn’t show faces, but I’m not o.k. with it because they are not o.k. with it. He has turned them into his own cultural capital: He is a hypocrite. And your implication about precedent is right, it is troubling.

    2. This decision is not setting precedent. It is reinforcing the law as it has been applied the same way for decades. And no, infrared photography cannot see through curtains, no matter what they are made of.

    1. Wasn’t their choice though was it? Personally I value consent as opposed to exploitation. While not always possible, if someone makes clear they feel you’ve victimised them, no excuse for continuation.

  5. Would the photographer’s exemption apply even if the subject were identifiable? Naked or in other compromising states? Pictures of children? No age limit is in the NY Statue – just a living person – and photographer’s have an exemption. Would you want someone selling pictures of YOUR kids or of yourself taking a nap or being intimate on your couch in your own living room without your knowledge or permission?

    Could an “artist” go to a town on Long Island, park a vehicle on a public residential street, where parking is legal, and just start shooting pictures through resident’s windows and sell them?

    It’s the unwitting and unwilling subject’s fault for having windows in their homes?

    Disturbing, indeed.

  6. Interesting Discussion. I myself restraint from taking pictures of people without their permission anywhere in the world (even though, developing countries people are much less likely to sue than the folks of Tribeca), not so much as respect for their privacy, but out as respect for them as people.

    1. As for the photos, I really liked the focused gesturing in the “workers” and found the “neighbors” too voyeuristic for my taste. The “Paris Views” are exquisite in that the subjects and the artist collaborated in such a joyous concert to create these beautiful reveries…

  7. Now, if a cheating politician was caught, or cops beating a resident – it would have immediately been banned!

  8. really? I am having such a hard time with people saying get curtains. He used a lens that allowed him to spy on his neighbors – if he had a pair of opera glasses or full on binoculars he would be arrested – kind of stalkerish and creepy

  9. I have very mixed feelings about this. Like others, I am loath to introduce new laws that could curb ideas although, if asked, I would have assumed this was against an existing law. Personally, I would be appalled if, unbeknownst to me, someone was following my movements in my home with a telephoto lens. What we do and how we behave when we are alone is often not the same as in the company of another. In his photos in the gallery, he may just show someones hand or leg, but he has been observing (spying on) their every action for some time (possibly hours) in order to catch that particular shot. During that time, he is simply a Peeping Tom and a stalker. I think the “Workers” concept is really quite different – they are in the public sphere.

    To his uncritical supporters, next time you are alone in your home and find yourself doing something personal that perhaps you wouldn’t do if you thought you were being observed, consider Svenson’s neighbors.

    BTW, I think saying the neighbors should keep their curtains or blinds pulled is really awful – they should live in darkness to avoid being stalked? That makes me think of the kinds of things certain people say about young women who are sexually assaulted, eg: if her skirt wasn’t so short or clothes so skimpy… Hello!!!

  10. I’m not comfortable. Period. Don’t photograph me in the intimacy of MY nap. If I did not give you permission, do not let me find out. WRONG.

  11. Nothing but a peeping tom with a camera… when you pair this with the Texas court ruling that “upskirting” and “downblousing” is not an invasion of privacy, you are giving perverts a license to photograph. This may be legal but it is not ethical. Don’t I have an expectation of privacy in my own home? @Linda Griggs, looks like you want poeple to live in apartments with the drapes pulled during the day? That makes as much sense as screendoors in submarines..

  12. After examining the offending pictures, I personally think that there are banal, nothing he could have done as a selfie & not any good and certainly do not justify the stalking. As for any high-level messaging of exposing that that you can do it and that is the point, therefore the art is validated…I do not buy that: Stalkers across the land do that on a daily basis and that’s way too way much of that kind of messaging for me, thank you very much. The end did not justify the means…. Hopefully, the court decision will not lead to more distasteful ventures cloaking themselves in the sacrosanct mantel of “it is my art and I can do what I want..”

    1. Why can’t artists just do pretty stuff that doesn’t challenge us, right Terry? Why can’t photographers just stick to kittens and sunsets?

        1. Ok, More thoughts on this, artistic challenge has always been us: Leonardo painting the Mona Lisa with hands showing! Michelangelo painting his enemies in the Sistine chapel going to hell (cardinals no less), of course the impressionists, the folks who thumbed their nose at the Nazis with their idea of degenerate art, Guernica, my favorite – Dada, photographs of the execution of a prisoner by a South Vietnamese officer and so on…
          Those examples are memorable. Now back to the subject at hand, a 2 year legal battle to establish the legality of intrusive voyeurism via advanced technology leaves me very cold as it only seems to signal & legitimize perverts and the NSA and their ilk that we are only expect privacy in a windowless sound-proof Faraday cage.
          Challenged I was and I am indignant about. I guess that makes it successful art…(weird world….)

      1. OK more “comments and a lively discussion welcomed by Hyperallergic”. Love it!
        After reflection, I feel I need to address the important issue of kittens & sunsets as only worthy subject for Photographers.
        I love sunsets(though not the usual cliché pictures on a beach to advertise of dream vacations in some resort somewhere). I spent 3 weeks on my couch recovering from Pneumonia and was treated every evening to glorious sunset-lit skies and clouds over the hills out of my living room windows and yes I could not resist capturing these scenes in photographs over an over….
        Now on to Kittens, OK cute kittens appealing to our parental protective instincts are delightful and I grant you boring photo subjects. Cats on the other hand is an altogether other thing, Nobody has come close to capturing the beauty of impendent small size feline animal which somehow chose to live with human. The real art is the cat itself and what a performance do they put on! No need to photograph them, just enjoy

  13. In my town we close the curtains when we dont want to be seen by the neighbors – where do people get an assumption of privacy if they are doing things in front of a window? What if they were doing something obscene in front of their windows that children could view, or commiting a crime, would they expect to be protected then, too?

    1. Good point, a relative of mine was sitting innocently naked in a window (back in his hippy college days) in a small Kansas town and was duly reported by the lady next door who called the police. It resulted in his arrest and conviction and pretty much ruined his life plans of being a teacher. That does excuse willful gratuitous intrusion of privacy.
      I expect my neighbors/strangers not to use high power binoculars or a telephoto lenses say from the roof of their house or via their drone to record what I am doing though the open door of a back bedroom which might not be visible through the window to the casual passerby.

  14. Perhaps what is distressing is not the pictures that were displayed but the inference that there may be many, many more shots that are in a private archive which the subjects of the artwork are not allowed to see or otherwise access. People are not trees, or animals or buildings and there will always be an emotional edge to capturing and holding a person’s image even if they are “anonymous.” Seems like there was a pretty big leak in that anonymity.

    1. I was just reading through all these comments to see if anyone else had
      brought up this angle. The artist may have chosen to only display
      images that he deemed appropriately anonymous, but how long was he
      shooting and watching?

      I agree with the courts upheld decision
      based off the current legislation, but I do believe that it’s worth a
      second look into not the art work that he produced per se, but the
      “vouyeristic peeping tom factor”.

      Would it make a difference if
      he shared with the public that the shoot was purely impromptu and that
      he had witnesses to back him up? What about if after the “models”
      approached him of their concern, he was transparent about all the images
      that were taken and the time spent taking them? Not saying that was
      the case here, but just a thought in regards to invasion of privacy vs.
      civil rights freedoms and artistic consent.

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