The Right to Privacy vs. Freedom of Expression

Most of us are in the phase of the semester where we are discussing defenses, exceptions, and limitations on the areas that are the subject of our courses. Certainly, my trademark class is grappling with cases considering First Amendment limitations on IP rights.

One recent case places the First Amendment as a limitation on the right of privacy. This New York  court considered a photographer's images taken with a telephoto lens aimed inside people's homes.  The plaintiff asserted violation of New York's statutory right of privacy.  According to the opinion, the photographer, Arne Svenson, has exhibited the works and reproduced some images here. 

According to an earlier court opinion, Mr. Svenson did not obtain consent but rather "I carefully shoot from the shadows of my home into theirs." Although some of the images do not show the occupant's faces, some did at least partially. One is a child's face that was alleged to be identifiable. According the plaintiff, the location of their apartment has been made known as well "which Plaintiffs allege compromises the security and safety of the children."

Nonetheless, the Appellate Division affirmed dismissal of the complaint, given that the art works were for expressive purposes protected under the First Amendment. As the court stated, "works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption." Further, the Court observed that "the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available."  Certainly, in an era of emerging drone use, such cases are likely to arise with more frequency. If you are interested, a full copy of the slip opinion is here.