Permission — a legal or moral question?

Jimmy Stewart watching his neighbors in Hitchcock’s “Rear Window”

Getting permission from subjects in a public setting is a sticky dilemma for most photographers. Often, we don’t want to confront subjects and cause them to change their expressions or actions to look their best in front of the camera. Or we simply don’t want them to say no and leave. Either way, it’s a confrontation most would rather avoid, even if most of the time it turns out positive.

There are legal and moral issues behind these difficult decisions.  One legal issue that made headlines a few years ago involved a New York  photographer who chose to not to ask. After watching Alfred Hitchcock’s “Read Window”,  Arne Svenson took hundreds of photographs from the street and other buildings of people (and their kids) in their apartments, through their windows. They were unaware he was photographing them. He printed them up and had a gallery exhibition entitled “Neighbors” in 2013.

 

The exhibition was received with outrage. Some of the subjects got together and  sued him for invasion of privacy.  The case reached the Supreme Court.  Plaintiffs said they were “frightened and angered by [Svenson’s] utter disregard for their privacy and the privacy of their children.”

Svenson defended his actions under the umbrella of “art”, protected by the first amendment.  After 2 years, including an appeal by Plaintiffs, Svenson won his case, based in large part on 1) the residents had their windows or shades open (thus, they had given implicit permission),  2) their faces were not shown so they were not recognizable., and 3) he did not use the pictures “for trade or advertising purposes”.

https://news.artnet.com/market/arne-svenson-neighbors-photographs-supreme-court-286916

One of the judges wrote that the decision was made based on “the limitations of New York’s statutory privacy law in redressing this kind of technological home invasion and exposure of private life.”

Some may equate Svenson’s actions with celebrity paparazzi photographers, who justify their livlihoods under the freedom of the press. They typically cite the  celebrity’s implicit and conflicting love affair with public adoration: Celebs want as big an audience as possible for their movies, shows, music, etc. (more buzz = more income) but also a little privacy in public (contradiction in terms?). As celebrities in public, the conflict is that they can’t always choose only the good publicity or best pictures of themselves when they’re out in public.

So the legal issue was decided with Svenson. How about the moral issue? In the court of public opinion, most people were not happy. They felt the invasion of privacy was obviously violated, as the residents had the impression that they were alone in their private apartments, regardless of the window.

Was the judge’s decision fair, in your opinion?

Does the law need to be changed or modified to reflect the majority of public values today?