Foster v. Svenson, 128 A.D.3d 150

Defendant Arne Svenson, a fine-art photographer, used a telephoto lens from his apartment to take candid photos through the windows of a neighboring apartment building over ~1 year and assembled them into an exhibition titled "The Neighbors."
Two plaintiffs discovered their young children and mother identifiable in exhibited/sold photographs; plaintiffs demanded removal, the gallery and some online sellers complied, but images circulated in media broadcasts and online.
Plaintiffs sued under New York Civil Rights Law §§ 50–51 (statutory right of privacy) and for intentional infliction of emotional distress (IIED), and sought a preliminary injunction; Supreme Court denied the injunction and dismissed the complaint on First Amendment grounds.
The Appellate Division considered whether use of plaintiffs’ images in the art exhibit/sales was "for advertising or trade purposes" within §§ 50–51 or instead protected expressive/artistic publication exempt from the statute.
The court concluded the photographs constituted protected artistic expression falling within the newsworthy/public concern exception to the privacy statute; plaintiffs’ allegations did not plead a statutory privacy violation, and the alleged intrusion did not meet the high threshold for IIED to overcome First Amendment protection.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether publication/sale of candid apartment photos is "for advertising or trade purposes" under NY Civil Rights Law §§ 50–51	Svenson used plaintiffs’ images to sell and promote the exhibit/prints, so the statutory privacy tort applies	The images are artwork expressing ideas; art and its promotion are protected by the First Amendment and fall outside the statute’s advertising/trade scope	Held: The images are constitutionally protected artwork; use not "for advertising or trade" within §§ 50–51, so statutory privacy claim fails
Whether allegedly intrusive means of obtaining photos (home surveillance) or depiction of children makes the work unprotected, or supports IIED overcoming First Amendment	Intrusive, surreptitious photographing of private homes (including children) is outrageous and should negate constitutional protection	Even intrusive newsgathering or offensive means do not strip First Amendment protection unless conduct is "atrocious, indecent and utterly despicable"; depiction alone does not create special exception	Held: Conduct, while invasive, did not meet the extraordinarily high standard for IIED to override First Amendment/public-concern exemption; IIED and privacy claims dismissed

Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (Ct. App. 1902) (origin of NY statutory privacy response to perceived need for legislative rule)
Arrington v. New York Times Co., 55 N.Y.2d 433 (Ct. App. 1982) (privacy statute construed narrowly to accommodate First Amendment newsworthy/public concern exception)
Howell v. New York Post Co., 81 N.Y.2d 115 (Ct. App. 1993) (newsworthy exception applied; limits on IIED where defendants acted within legal rights)
Finger v. Omni Publications Intl., 77 N.Y.2d 138 (Ct. App. 1990) (photo bearing a real relationship to article falls within newsworthy exception)
Stephano v. News Group Publications, 64 N.Y.2d 174 (Ct. App. 1984) (profit motive does not defeat newsworthy/public-concern protection where content is newsworthy)
Altbach v. Kulon, 302 A.D.2d 655 (3d Dep’t 2003) (artistic caricature and related use protected as art rather than commercial appropriation)
Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D.N.Y. 2002) (collage artwork displayed and sold by museum protected by First Amendment despite use of another’s image)
Nussenzweig v. DiCorcia, 38 A.D.3d 339 (1st Dep’t 2007) (photographer’s art exhibit use of identifiable images not treated as commercial under privacy statute)