The Peeping Tom: It Wasn't that Bad

Arne Svenson's show "The Neighbors" hanging at Julie Saul Gallery in New York City. The show was up from May 9 to June 29.
Photo courtesy Julie Saul Gallery.

Do you remember Arne Svenson? We wrote about him a while back, last May to be exact. He's the fellow who engaged in a long-term art project shooting pictures through the open windows of the apartment building on the other side of the street from where he lives in New York City. Sort of a glorified, gussied-up peeping-Tom kind of thing. Some of his neighbors were displeased, as they discovered large prints of themselves taken surreptitiously through their windows being put on view at a prestigious city gallery.

One couple sued.

Well, the court has now ruled—in the artist's favor. Judge Eileen Rakower of the New York Supreme Court limited her decision to the "circumstances presented here," but wrote that the artist's First Amendment protections outweigh the subjects' expectations for privacy.

Note that issues like this are never not going to be thorny, and, as Ctein often reminds us, such issues often come down to case-by-case adjudication.

Arne Svenson, "The Neighbors" #16

Personally, I like the pictures, small JPEG renderings of which can be seen on Arne's website. But I sympathize more with the neighbors (the body of work is called "The Neighbors"). I find I identify with them more than I do with the photographer, and I know that I would definitely not want someone snapping pictures of me in my home through my open window.

But the judge's ruling seems sensible. Through the scaffolding of due process and legalese, the ruling seems to say, in effect, "In this case, it wasn't that bad."

Mike
(Thanks to several readers)

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(To see all the comments, click on the "Comments" link below.)
Featured Comments from:

Carsten S: "I am more concerned about the watching that he had to do to take the pictures than about the publication of that particular selection of photos."

David A. Goldfarb: "There are relatively few buildings like the Zinc Building in New York—seven stories with floor-to-ceiling windows and 21 apartments in a bustling Tribeca location, where an 880 sq. ft., 1 bdrm, 1.5 bath apartment sold for $1.375 million just this past April. If one wanted not to be on display, it would be easy enough not to live there."

Mike replies: I know this is off topic, but that's one of the reasons I like Waukesha: around the corner from me, there is a big, beautiful stone house with 5,000 square feet including an indoor gym, four one-car garages and an oversized garage for an RV, on a beautifully kept 2.5-acre lot with mature trees and a broad lawn. Hammer price: $319,000. Sold just a few months ago. Of course, it's not New York; but then, some people would prefer quiet, safe, friendly li'l ol' Waukesha. The realtor: "It takes a special kind of buyer. The taxes are very high." Taxes: $9k annually.

Back on topic: Does the size of your windows really change the issue? That sounds suspiciously like the old saw about a woman asking to be raped because of the provocative way she dresses. A central tenet of moral behavior is that you follow the principle rather than allowing yourself to be influenced by temptation or opportunism, no?

Of course, the courts have ruled, so we're only talking about ethics here, not legality.

Herman Krieger: "It looked like a window of opportunity."

Bill Poole: "Judging from the images on his site, these are beautifully composed photographs—not of the building residents, but incorporating fragments of their figures into the compositions. (The photographer seems to have gone out of his way to not include recognizable faces.) To me, the result is strangely moving: intimate without being personal or revealing."

Alan Fairley: "As an attorney, I was intrigued by the legal issues in the case. I poked around a bit and found that what Svenson did would almost certainly be actionable in jurisdictions that have a common-law right of privacy, as defined in the Restatement of the law of Torts. However, New York State does not recognize that common law right of privacy, which hamstrung the neighbor's ability to plead a viable claim against Svenson. Instead, they had to sue for 'unauthorized use of likeness for commercial purposes' which, not only in New York but virtually every jurisdiction, recognizes an exception for works of art. Thus, the lawsuit was doomed from the start.

"Personally, I find what Svenson did to be reprehensible, but on the other hand, I find the photographs luminously beautiful.  No one ever said art was simple."

Comments

[Stan B.]

After seeing them in person this summer I was surprised on several levels, not the least of which was that they look more like paintings than photographs due to their diffuse, unsaturated colors, and are, if anything, so conservatively cropped with such a minimum of detail, that there's really little there there for any kind or real controversy (let alone illegality), other than what some clever publicity campaign may seek to embellish.

The best thing about seeing this show at Julie Saul's however, was getting to see the one directly adjacent- Charles Johnstone's wonderful series on NYC handball courts!

http://www.charlesjohnstonephotography.com/?gal=4

[Michael Matthews]

The concept is creepy. The photos, superb.

Fortunately, those displayed on his website stop far short of featuring identifiable people and refrain from the use of unflattering or demeaning situations.

[Ben Rosengart]

Something can be, simultaneously, "not so nice" but also legal. This is not a problem to be fixed, but rather a necessity. If the law were to map exactly to social mores, how would you handle evolution in mores? Or the fact that at any one time, different communities under the same legal system have different mores?

[Ben]

It'd be tough to let this post pass without a song...

http://www.youtube.com/watch?v=0NUyutIILGs

Anyway I think it is a sensible ruling, and I'm glad that the intent of the pictures was understood in the context of the ruling.

I don't live in New York, but I do have neighbors, and if I want privacy I just lower the shades.

[rnewman]

they may not be that bad, but frankly, to me they ain't that good either. I'm largely unimpressed by them as images. If taken out of the context of the method of acquisition, for me, as images they fall rather flat.

[Sebastian]

> Does the size of your windows really change the issue?

It might change the issue as far as merely being seen is concerned. The larger your window, the easier it is to be seen. People know that, and it should factor into the residential decisions they make. (In that vein, note that some women do dress provocatively in order to be looked at.) The interesting question is rather if that (implicit) agreement to be seen entails an (implicit) agreement to be photographed while being seen. Given the difference in comfort that many people perceive between being seen and being photographed, I have considerable doubts this entailment holds.

> Of course, the courts have ruled, so we're only talking about ethics here, not legality.

True, but remember that legality should always be based on sound ethics, not vice versa.

[Mike Anderson]

Taking pictures out of the rear window of your apartment at the goings on across the way is a dangerous business. I saw a movie about that once, I think with Jimmy Stewart, led to nothing but trouble.

[Roger Bradbury]

@ Mike: "Taxes: $9k annually." Is this like our local council rates, which in the UK go towards local public amenities?

[Hugh Smith]

The argument that "It wasn't that bad" is similar to saying "he only wounded the victim and it wasn't that bad."
AND while the photos weren't provocative, the photographer did indeed invade these people's lives...bad, good or otherwise.

[Herman Krieger]

Property taxes in Waukesha must be based on weight rather than market value.

[Joe Holmes]

"The realtor: "It takes a special kind of buyer. The taxes are very high." Taxes: $9k annually."

Property is extremely expensive here in NYC, but one of the benefits of population density can be lower taxes. The annual taxes on our brownstone in Brooklyn are a fraction of what that real estate agent cited.

[Tim]

OK - Amazon recently put the first reasonable ad I've seen on my Kindle since I've had the thing - Flannery O'Connor's "The Complete Stories" for 99 cents. "The Geranium" - the first story - is still fresh in my mind. Old Dudley staring across the alley day after day at that geranium in the window across the alley from his daughter's (?) apartment until it falls and the owner appears in its place...

[Bear.]

I'm a lawyer too. But although the legal issues are interesting to me (especially as there is no constitutional protection of freedom of speech in Australia), I find the differing moral responses to be even more interesting.

I have no personal issue at all with Svenson's approach (c.f. Mr Fairey's "reprehensible') - it seems to me that a view into a window open to a public space is as much part of the public space as a view out of the window into the public space - that is especially where the person looking out has control over whether they may be seen.

[John Robison]

Since I don't cavort nude in front of our open apartment windows this does not bother me. If someone wanted to waste film or electrons or his time photographing a pot gut, baggy eyed, 64 year old fart I say "Have at it Rupert".

I don't think any gallery will accept the results for a show however.

[Robert]

I agree with Alan Fairley that it is reprehensible. It's worse than paparazzi. It is way over the line. One of the problems I have with pop culture is that everyone feels they have a right to know everything you do or think. There can be no intimacy when you have to always be on the look out. Street photography is cool, but this ain't that.

And so art can excuse anything, especially if its done with sytle and grace?

(sorry if this is a knee-jerk reaction)

[Sarge]

Windows are for looking out. But as the phrase "provide a window to" suggests, they're also for looking in.

Shutters, blinds, and curtains are for shutting out one side from the other. Curtains and other forms of window dressing are for looking at the window rather than through it. In which case, it (window) "makes a better door than a window".

Mirror foil or one-way film prevents those on the outside from looking in while still allowing those on the inside to look out. But this (one-way foil) works in the daytime only, when light is brighter on the outside. At night, those on the darker side of a window (foiled or not) can look at those on the brighter side (but not the other way around).

Of Arne Svenson's window pictures, I have no problem with those taken in the daytime. Ditto with his night pictures when he was looking out of his window. But I have problems with his night pictures when he was looking into his neighbors' windows. That is, when the photographer was on the darker side.

[Sven W]

The court case highlights the difference between legal and moral.

I like the photos, but it's at the expense of other people's privacy _in their own homes_.

Hopefully the photographer never has to borrow a cup of sugar ...

[Mandeno Moments]

My personal ethical code would preclude the making the making of such photos, and Svenson is doing other artists a disservice at a time when irrational fear of photographers is rampant. However, I would say that a person who sits in front of his bare window when there are buildings of equal height across the street has no reasonable expectation of privacy (I checked the street view at the Zinc Building, 475 Greenwich St).

The photos on the website do not contain recogniseable faces, but I still find them to be creepy. Was this intended that type of "modern art" which focuses on being confrontational and offensive rather than on being something that has aesthetic appeal?

Statements such as"[Svenson has an] aesthetic sense viewed from the perspective of social anthropology"* suggest to me that his target market is the art professors who live in their ivory towers and profess to enjoy the type of art that leaves Joe Public scratching his head and wondering where the art is.

* When you analyse that sentence it really makes no sense.

[Henry Rogers]

Seems a bit distasteful to me.

[Mark Cotter]

Curtains? Clearly you might be in a private space but you are being far from private if the lights are on and everyone can see you. Close the curtains/drapes/blinds if you want privacy.

Slightly off topic, can I make a link to the work of Shizuka Yokomizo (a series called Strangers and was shot 98/99) who asked strangers to appear at their window at a given time so she could take their photograph. If the stranger didn't want to participate, they closed their curtains.

[David Paterson]

While initially repelled by the idea, I was won over by viewing the images. They are strangely beautiful, involving and very, very human.

Unlike the introductory blurb on the website; "quotidian" - give me a break!

[Peter]

Regardless of what one thinks about the merits of these pictures as works of art, he did something that was bound to provoke controversy (and I would guess was part of his plan). A few leaks by the artist or an agent, or the gallery and the thing takes off in the media. The lawsuit gets even more coverage, the artist gets his "fifteen minutes" and more to the point, his pictures sell, probably at higher prices than they would have without all the press. Very cleverly planned and exploited.

[Sean]

"Yet high over the city our line of yellow windows must have contributed their share of human secrecy to the casual watcher in the darkening streets, and I was with him, too, looking up and wondering. I was within and without, simultaneously enchanted and repelled by the inexhaustible variety of life."

I'm with Nick & the photographer

[Andreas Weber]

> That sounds suspiciously like the old saw about a woman asking to be raped because of the provocative way she dresses.

The lady in question here wasn't raped - she's complaining that guys have the gall to look at all the skin she exposes ...
Honestly, if your windows are facing another building (or go out on the street) and you don't want people looking in put up some curtains.
Btw., where to draw the line? In Andreas Gursky's "Montparnasse" http://transform-mag.com/ps/andreas-gursky-%E2%80%93-architecture#id=5806 you can look into a lot of windows, there are people visible http://transform-mag.com/ps/andreas-gursky-%E2%80%93-architecture , and nobody complains ...

[Andrew]

It appears the photographer decided not to further print, exhibit or publish the photographs of the plaintiffs. From the court's decision:

Plaintiffs face no immediate irreparable harm in the absence of an injunction. Defendant states in his affidavit that he removed photos of Plaintiff from his website and Facebook page, he will not take any new pictures relating to "The Neighbors", and does not intend to "print, exhibit or publish any of [Plaintiffs'] images in the future." Additionally, the exhibit has ended and the galleries have taken down and ceased sale of the photos. Therefore, Plaintiffs' photos are not being disseminated, displayed, or sold.

[David Bennett]

They are very nice compositions and the colours are lovely - but no one in the photos is actually doing anything interesting.

If someone was engaged in sex; if a person was shooting someone; was sobbing on the phone while holding an eviction order - but there's none of this.

Take away the windows and what have we got? A dog, a man leaning, a couple sitting...

So I have to conclude that the only real interest is precisely because they were shot through a window and the photographer was playing to our interest as peeping toms or our dislike of being tom-peeped.

Compare these with Saul Leiter - people in the street, in cabs, in buses - almost always something between us and the subject. He makes the street come alive.

On the street there is a dynamic. It is a public place and people act accordingly.

And the photographer is in the street as well.

With Mr Svenson's photos there isn't a level playing field.

It's less sporting.

By the way, do you remember the French paparazzo who shot Kate Middleton (Duchess of Cambridge) with her top off? She was a hundred yards deep in the garden of a villa and the photographer was up a tree with a long, long, lens.

I remember Kate and William were going to sue the photographer for criminal trespass, but I don't know what happened or whether the case got off the ground.

[Doroga]

Don't see any issue with these photos.
They are really good and I wouldn't mind to have them published if I was one of "models".

Issue is not with final pictures but with things he may have seen. And with photos he may have taken but kept to himself.
Pictures just show how well he was able to spy on them and how detailed some more personal photos mights be.

[David A. Goldfarb]

In New York, I'd say the size of the windows do matter. There are apartments in New York for people who really do want to be on display. They want the kind of space where they can have an elegant party or an extravagantly staged living space, and they can show it off to their neighbors. They can also have curtains for when they have privacy, and if they generally don't want to be in the showcase in that way, there are plenty of high-end properties with fantastic views, lots of light, and more privacy by virtue of being on high floors, having tinted windows, or facing the water, so there is no easy sightline into the apartment, unless you're on a boat with a telescope. One may find that kind of conspicuous consumption distasteful, but it's part of the fabric of the city.

[Gaspar Heurtley]

My last semester at school, when I was about to get my journalism degree there was a class called Ethics.
One of the assignments was about an hypothetical situation were you where looking at the window at your house and you overheard a conversation taking place right next to you: a Mayor was in his balcony openly talking about the way he takes peoples money to buy a condo or something like that.
What would any of us do? Would you do the 'honest' thing and turn him in?
Or would you do the 'moral' thing? That is, respect his privacy? He was at his house after all...
On the other hand, what expectancy of privacy could he have if he was at the balcony, where anyone could hear him?
There are 55 shades of grey, whether you are the photographer or the model.

[Seth]

As someone who lives in a building with large, street-facing windows (albeit a long way from New York, both physically and culturally), I find these pictures incredibly creepy. I'm constantly aware of the fact that I'm incidentally visible from the street and the building across from me, but having someone point a telephoto lens into my windows specifically to record my activities would still feel like a violation. It's all about intent, in my opinion.

[Animesh Ray]

There have been a number of comments above, disapproving of this practice of shooting through windows without permission. I suppose without this practice, we would not have this photograph by Cartier-Bresson (http://tinyurl.com/k4hyn9u), this one by Helen Levitt (http://tinyurl.com/n7hjjpq), even this one by Robert Frank (http://tinyurl.com/mtatfn8). Why are we suddenly debating this issue now? Just because it was challenged in court? What has changed between the time those photos were taken and today, so that we are critical now but accepted the same practice in the past?