In May I wrote about the controversial exhibition of photos by Arne Svenson, 'The Neighbors', hosted at the Julie Saul gallery in Chelsea, New York. If you didn't have the chance to read about it then, Svenson had stood in his flat and used a long lens to photograph the occupants of the glass-walled flats opposite his own. The residents of the Zinc Building met the images and the exhibition with a distinct sense of violation and some of them chose to pursue Svenson through the courts. One such case, presented by the Foster family, was presided over and has subsequently been dismissed by New York state Judge Judge Eileen A. Rakower. She has ruled that the photos were protected by the First Amendment and that the images were not in violation of New York's civil rights laws.
The Fosters had claimed that because the photos were available for sale, they constituted commercial use, which breached laws governing the use of people's likenesses commcercially without their consent. Judge Rakower, however, determined that the images were not used for commercial purposes as artists are at liberty to create and to sell works of art that resemble individuals without their consent.
In this instance, however, the primary purpose of the photos was artistic, and consequently the First Amendment trumps privacy. According to Judge Rakower: 'The value of artistic expression outweighs any sale that stems from the published photos.'