Monday 18 May 2015

The Reach of the Lens

One of The Neighbors
Huge thanks to Molly Torsen Stech for the following guest post on the Svenson saga. For those not aware of this US case it is what might have happened in Rear Window if Jimmy Stewart was an artist.

Molly is a copyright and trade mark policy attorney based in New York City. She recently joined INTA as Editor-in-Chief and is involved in pro bono work for Volunteer Lawyers for the Arts of New York (VLANY). Before moving to New York, she was Counsel in the Office of Policy and International Affairs at the US Copyright Office, where her portfolio included Europe, Russia, Canada, relevant WIPO committees, and the OECD.

On 9 April 2015, an appeals court in New York State decided a controversy that highlights one of the many discrete qualities of photography that challenges current law. Copyright law itself is not implicated; rather, the jurisprudence in question is based in privacy interests. Artist and photographer Arne Svenson was born in 1952 in Santa Monica, California, and has worked in New York City for three decades.  His work is quite varied; the stylistic approach that best captures it is, to my eye, accurately reflected in his biography: “First and foremost in Svenson's practice is to seek out the inner life, the essence, of his subjects, whether they be human, inanimate, or something in between.” If Mr. Svenson was surprised by the litigation, it could well be that the exhibition that prompted the lawsuit was not dramatically different from some of his prior work

In the first half of 2012, Mr. Svenson began photographing people in the apartment building across from his own in Manhattan. The building’s fa├žade is mostly glass, and Mr. Svenson photographed his subjects without their knowledge, although his lens could of course only capture what was viewable in front of various windows facing him. He selected some of these images to comprise an exhibition he called The Neighbors, which was exhibited in galleries in Los Angeles and New York. During the New York exhibition, various subjects of the photographs learned that their images were included in the show and demanded the withdrawal of those works. The artist and gallery agreed to remove some of them, including one where siblings were photographed together (which they presumably agreed to remove based on a potential viewer’s enhanced ability to recognize them together rather than separately).  In an interview in March of this year, Mr. Svenson noted that he shot the photographs “for the tiny nuances of gesture and posture that define who we are, collectively. The subjects are to be seen as representations of humankind, non-identifiable as the actual people photographed.” His purported aim, then, was not to photograph these particular individuals; rather to photograph vignettes of people, generally, in their homes. 

In May 2013, some of the photographs that Mr. Svenson had not removed from the exhibition were shown on television broadcasts, which prompted the lawsuit; plaintiff tenants (and subjects of Mr. Svenson’s photographs) sought damages pursuant to the statutory tort of invasion of privacy, and the common law tort of intentional infliction of emotional distress. The trial court granted the defendant’s cross-motion to dismiss the complaint in August 2013, but the appellate court then granted a preliminary appellate injunction. The New York privacy statute, however, focuses on restricting activities that have “advertising purposes;” and activities “for the purposes of trade.” The appellate court noted that the legislature’s use of the “broad, unqualified terms for advertising and trade purposes, on their face, appear to support plaintiffs’ contention” that the statutory terms should apply across the board to items bought and sold, including artistic photographs. But it found that courts “have refused to adopt a literal construction of these terms because the advertising and trade limitations of the privacy statute were drafted with the First Amendment in mind.” It ultimately granted Mr. Svenson’s cross motion to dismiss the complaint. 

Not to be confused with these
There are several questions raised by this case which were not presented to the court. For example, many art critics note the “painterly” quality of Mr. Svenson’s photographs, likening some of his work to the paintings of John Singer Sargent. Extrapolating from this characterization, would paintings based on his photograph also engender claims of invasion of privacy? In January of this year, a civil court in Antwerp surprisingly (at least to this lawyer) found that a Luc Tuymans painting based on a photograph of a politician infringed the copyright in that photograph. In different jurisdictions, could Mr. Svenson make paintings of his photographs to avoid the privacy claim? In other words, is it the nature of photography itself that is the offender here? Or is it the resultant recognizable likeness of the individual, whether on Panalure paper or canvas? Obviously, New York and Antwerp operate under different laws, but the question of what the offense is – the likeness or the medium – is interesting. Recalling the 2004 UK case Campbell v Mirror Group Newspapers Ltd, I wonder whether Mr. Svenson’s photographs would receive more hostile treatment on the other side of the Atlantic (acknowledging, however, that Ms. Campbell is a celebrity, which certainly distinguishes the cases.) 

Another open question is the relative importance of artistic intent or meaning. In the recent Second Circuit Cariou v. Prince copyright fair use decision, the court emphasized that an artist’s commentary on his own art is not necessarily the key to answering the fair use factors under copyright law, but it spent quite a bit of time remarking on the different genres of audiences that the artists in question tended to attract, and did not provide clear guidance on who the appropriate “observer” is in qualifying the four factors of the fair use doctrine. (“Prince’s work appeals to an entirely different sort of collector than Cariou’s. Certain of the Canal Zone artworks have sold for two million or more dollars. The invitation list for a dinner that Gagosian hosted in conjunction with the opening of the Canal Zone show included a number of the wealthy and famous. . .”) In the Svenson case, the appellate court acknowledges Mr. Svenson’s status as a “renowned fine arts photographer” as a factor that favors protecting his work under the First Amendment, but the court leaves the analysis there, declining to go on to focus on the audiences that his work might reach. Copyright case law and privacy case law may simply part ways on that scale. 

As a last point: none of these struggles of balance between art and privacy are new. The Svenson appellate court, at the opening of its decision, references the renowned 1890 Harvard Law Review article by Samuel D. Warren and Louis D. Brandies, The Right to Privacy. Although it does not specifically cite this passage, I find it relevant, and as appropriate in 2015 as it was in 1890: 

If you may not reproduce a woman's face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination ... [However], it is only the more flagrant breaches of decency and propriety that could in practice be reached [by a right to privacy], and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn.

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