For the love of Art: how Foster v. Svenson places artistic expression over privacy

by Jameel Odom

On April 9th, the New York Appellate Division of the Supreme Court upheld the Supreme Court’s dismissal of a family’s right of privacy issue because of an artist’s freedom of expression.

In 2013, Martha and Matthew Foster filed a claim that alleged a breach of their privacy by photographer Arne Svenson after learning that they, and their two children, were the subjects of Svenson’s new series of photographs and exhibit entitled “The Neighbors.” In order to capture the images for the series, Svenson used a camera with a telephoto lens to take pictures of the Foster family’s glass apartment across the street from his home. Svenson took the pictures without the knowledge or permission of the Foster family. The Fosters eventually found out about the images through a local news source that was promoting Svenson’s new work and show.

The Supreme Court of New York granted Svenson’s motion to dismiss Fosters’ claims for injunctive relief and damages for emotional distress. In order to come to this conclusion, Judge Rakower began by analyzing the statutory language. On one hand, New York’s Civil Rights Law makes it a misdemeanor to use a picture of another person without their consent for advertising or trade. Judge Rakower makes clear, however, that even though the Fosters saw the pictures of them in a notice promoting Svenson’s show and even though Svenson might have profited from the images he created, the promotion of the exhibition and the images alone, does not satisfy the

definition of “advertising or trade purpose” in the statutory language. The statutory language also allows for civil lawsuits in these kinds of cases. The law limits the tort to appropriations for commercial purposes to avoid First Amendment problems.

In this case, the Court found Svenson’s photographs to qualify as art because they expressed Svenson’s thoughts and ideas. Those thoughts and ideas are protected by the freedom of expression guaranteed in the First Amendment. Just because Svenson advertised his new exhibit and sold a few photos does not mean the photos were done for commercial purposes. More importantly, Svenson was smart enough to remove the pictures from his website and the Fosters could not demonstrate that the pictures had caused them any real harm. The court also notes that Svenson did not plan to distribute the pictures of the Foster family any further or take any more pictures of the Foster family in the future.

The takeaway from this case is that the court places more importance on protecting people’s freedom of expression, than clear invasions of people’s privacy. Justice Renwick recognized this tension in her opinion, but she found that the Foster’s invasion of privacy was not severe enough to override the court’s desire to protect the public’s interest in the free flow of ideas. It seems that the arts and artists enjoy a significant amount of liberty to create and display their art, as long as the conduct of the artist isn’t found be extreme, even when such expression might violate another person’s personal rights.


  • Foster v. Svenson, No. 03068 (N.Y. App. Div. Apr. 9, 2015).
  • Christopher Visentin, Case Review: Foster v. Svenson, Center for Art Law, May 29, 2015,
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