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?

 

 

25 Replies to “Permission — a legal or moral question?”

  1. This is just using people. The photographer is forcing them to lose their privacy, for his own gain. How can that possibly be acceptable in any soiety?

    If others followed his lead and started sneaking pictures of people in their homes, no one would feel safe. The paparazzi would rule and get paid for it!

    Even if we have the option open or close our blinds, that doesn’t give someone else the right to exploit us.

  2. A home is a man’s castle. Would we wear our pajamas in public? Probably not, except for maybe Halloween. But at home it is justified to be in our pajamas or slippers all day if we want. It should not be legal to invade the privacy of others when they are in their own home, or temporary dwelling, even if it for the sake of art. When we are in public outside of our homes, we do give up some of our expectation to privacy. But we know that ahead of time.

  3. I absolutely disagree even if the judge or law supporting Svenson based on calling it art. The biggest reason was that he made money selling some of the photographs, when faces, like the two children, were in clear view and without permission from the parents. When money is involved, without permission of the subjects beforehand, it is wrong. The photographer made no offer of payment or percentage or settlement.

  4. While I feel like people have the right to photograph streets, specifically photographing through windows without the residents knowing, this crosses the line of privacy for me. There are a lot of factors that could cause a world of harm here that the photographer probably wouldn’t have intended. What if more people decide to do this regularly? For example, someone stalking someone else, either a celebrity, pretty woman, or anyone they might be angry at. Would this person be legally allowed to continue shooting if they claimed it was art? I think this one opens up a big can of really big worms personally. 

  5. I do not believe it is ever justified to allow others to destroy our sense of safety and expectation of privacy when we are in our own home. Freedom of the press does not override the rights of the individual.

  6. This is an act of surveillance, and it was done with an intention to expose and sell the photographs. My concern is also the status of the images the photographer took but did not print.  Who knows what the individuals in those other photos were doing?  There may be some other intention by the photographer for the unreleased images. Would you trust images of you or your child to the discretion of a stranger?

  7. His photos might create a negative reputation for his subjects. If a subject ever were to recognize it was her in the window, she might be distraught by the invasion of someone peeping through her window, if she thinks someone is up to no good. No one wants to really be that person joked about that they are mentally unstable by strangers. It is almost impossible to tell how people feel about being photographed if they don’t tell you.

  8. I agree that especially with children, it should it be illegal to take a picture or publish an existing image without permission from their parents. Children should remain innocent as long as possible. Photographing children with or without their knowledge and publishing the photo might put that child in danger. That doesn’t mean anyone who photographs children is a pedophile, but it crosses a line. Children are like animals; they often don’t know how or when to protect themselves.

    Also, pictures of kids posted on social media or wherever allows the media to use them in good or bad ways. Children are not always equipped with the tools to deal with unwanted attention.

  9. If the images were taken with the consent of the neighbors, then everything probably would have been fine. Most of us naturally believe that they will be safe and private in their own homes and that nothing will violate this privacy. I think that Svenson crossed the line by taking these photographs without asking permission, especially with the children. I don’t think that Svenson thoroughly thought about the potential harms that could be caused by the photographs taken of the children. Who knows who could have bought those images and maybe used them to do bad things. In our world today you just don’t know.

  10. So where IS the line between privacy and art? Just as a society of free speech, at what point do we push the envelope to potentially slander, embarrass or harass somebody? How do we balance being protected without feeling violated?  When our most intimate moments might be captured by an artist in wait, an individual has limited abilities in protecting themselves.  We need clearer boundaries.

    1. 501 Howard — Excellent questions. What do you suggest as clearer boundaries? Generally, with photographs, if the people can be recognized by a jury of their peers, a model release is needed for editorial or commercial use. There are some exceptions for educational or other uses, but for the most part, the laws have drawn the line at recognizable faces. The moral line is still wavy though.

  11. If I was deep inside my apartment and learned that a photographer had taken photos of me, I would feel violated, and it would not be justifiable in the slightest, even if it was for a “project.”

    As for a more public photo of me being snapped while I was next to a window, I would assume that the person taking the photos was not intentionally taking a shot of me, so it would be more acceptable, because no harm was intended.

  12. I think one of the underlying priorities in photography should be to be genuine and honest. That is what photography’s reputation has always been built on. Lacking this, viewers turn away if they find something has been staged (if it supposed to be real or unmanipulated). There are exceptions to this — cleaning up a historical photo, recreating a scene that has been missed but still has value to a society, etc.

    For Svenson it seems like it was all about capturing authentic moments, which is OK to a point. But he should have asked for permission. He didn’t have to shoot photos that same day or a week later. But perhaps a month or two later, when, if they gave permission, they would have been relaxed and not on guard as much. But he choose to spy, to shoot first and worry about the consequences later. Kind of like speeding. You hope you aren’t caught, but inside you known it’s against the law, or just wrong.

    1. JasmineJ — Nice analogy with speeding. Only difference there is that if many people speed, there is a cultural acceptance of it. In this case, it seems most people abhor what Svenson got away with legally.

    2. JasmineJ: Ditto…Svenson should have tried to contact his subjects either before or after taking the photographs to get permission to display them. He probably took hundreds of different shots. From those hundreds, someone would have probably granted permission. Though more trouble in the beginning, it would have saved a lot of trouble later. Especially if he expected that some of the photos might sell for a lot of money, he should have consulted with the parents or individuals about payment or some other consideration for their permission.

      1. 111Klaus — Agree. I think there is a lack of morals in today’s society. Regardless of the judges’ decisions, it was an invasion of privacy. The photographer could have asked for volunteer subjects rather than invading the privacy of the residents. He also photographed young children without the consent of their parents. He sold the images for personal profit at the cost of others’ privacy.

    3. As a freelance photographer, I run into this problem all the time, whether I’m shooting on my own or at an event. Do I ask for a release from a subject?

      Documentary photographers should always strive to be authentic and realistic. For Svenson, this was not an event or something newsworthy. He could have shot these anytime, and the “need” or “value” to the public is hard to verbalize, other than saying it is “art”. Art has value, but when it violates privacy, it’s value deteriorates to the point that it can be less than the high value we place on privacy.

  13. Disagree with the judge. Art or no art, privacy should out rule freedom when it comes to photographs. Especially photographs that were being sold for a large dollar amount. It’s morally disrespectful to take pictures of other people’s personal moments if they didn’t give consent. That is why there are photographers for hire if people/family want these to be taken. Yes, they may be staged or posed but everyone will feel comfortable and not taken advantage of. 

  14. Hiding behind “artistic expression” should not override an individual’s right to privacy in their own homes. Though I disagree with the decision, if one expects to keep the things they do in their homes private, the person has the responsibility to privatize their actions behind curtains or shades.  We can’t expect others to keep our lives private. 

    Svenson’s defense to “obscure” their faces actually obscures his invading the privacy of the people in their homes. It’s no excuse.

    1. Wanda, Your points echo most of the responses. But how about if someone does put up curtains but doesn’t close them all the way, and the photographer shoots through them. Could the photographer argue they didn’t want complete privacy, so it was OK? How do we discern the intent of either photographer or subject?

  15. While I am all for artistic freedom, I have a hard time thinking that Svenson innocently didn’t consider the harm that his photographic project could cause. I’m sure he considered asking the models for permission to shoot or sell the images or get a share of the profit. As it happened, Svenson now comes off as kinda creepy, especially when it involves children. Not only can this cause paranoia in his neighbors, but it can also severely hurt people with PTSD from abuse and other mental illnesses like controlled schizophrenia or depression.

  16. To point a camera into someone’s private home, where they feel safe and untouchable, is not morally right. A home is a safety net, where you and/or your family can unravel from the rest of the world and relax. A place to get away from work, friends, strangers, etc. Personally, I feel uncomfortable looking into people’s windows when I walk or drive by, I couldn’t imagine taking a photo and selling it to strangers. Or, even worse, having someone you know walk threw the gallery and recognize you in a photo.

    I can understand the argument that if someone wanted complete privacy, that they should have closed their curtains. But how can a photographer know what the person behind the window did on purpose or by accident? Does that still make it legal for him to shoot and sell the photographs? I don’t think so.

    Kind of creepy the more you think about it. Especially if it was of children who were hardly clothed, baiting suit or not. 

  17. Svenson crossed a line, that should have him put away. He’s a peeping Tom, which is one step worse that a paparazzi that just sticks to shooting celebrities in public.

    When someone, or a family, is in their home and unaware, commonly accepted social rules in any society should respect their individual privacy.  If the person knows and doesn’t care that they’re being photographed, that should be permissible. 

  18. “Artistic” rights should be mediated the same way that free speech is mediated by society, when it damages others.  We are not allowed to have free speech anywhere we want, for instance in libraries or controlled speaking engagements. If somebody is using curse language in a public area, they will be taken away, and rightly so. Children should not be exposed to violent or threatening speech.

    If the art is causing another party undue stress or harm, it shouldn’t be displayed. There are laws like libel, defamation of character, and others that regulate our “free” speech. Unless we live in a hole, or never let natural sunlight in, an individual should have the right to open their windows without someone invading their privacy in their own home. 

    Svenson took advantage of unknowing individuals for his own gain.Though the court might have said it was OK because he didn’t use it for trade or advertising, that is BS. This case needs to be appealed, and the law needs to be changed or clarified.

Leave a Reply

Your email address will not be published.