John aka John wrote:
To those who seem to think this guy is in the right: no, I can't state a law that gives one a right to privacy in his own home. Doesn't mean there isn't one. Means I'm not going to look it up.

If you really believe this guy had a right to shoot people in their own homes, you're also fine with the cops keeping an eye on you without a warrant.

This goes beyond photography.

What you are missing is the concept of  "in your home"...... What does it mean?

Say my home is 10 stories up and faces an alley with a floor to ceiling glass curtain wall.  Across the alley is another building, same design and literally only 27 feet away.  I choose not to put blinds on my windows.  What is my expectation of privacy?  Is it absolute? 

Now, take that 10th floor apartment and move it down to alley level.  Any pedestrian cutting through the alley can see inside.  I choose to still not use curtains at all.  Is my right to privacy still absolute?  Or has it been waived somehow?

As for this telephoto lens thing, if The image was shot across that alley with a 50mm normal lens and cropped the image, that would be OK?  But shooting it with a 100mm focal length and not cropping is illegal?

John aka John wrote:
To those who seem to think this guy is in the right: no, I can't state a law that gives one a right to privacy in his own home. Doesn't mean there isn't one. Means I'm not going to look it up.

If you really believe this guy had a right to shoot people in their own homes, you're also fine with the cops keeping an eye on you without a warrant.

This goes beyond photography.

Oh man.

I hate to play Internet Lawyer but I'm going to have to for a minute.

Law enforcement does not require a warrant to "keep an eye on you". Law enforcement can legally do anything a citizen can do - Listen to you with an unaided ear - such as pressed against your window, follow you on the street, watch you in your home from a public street, PHOTOGRAPH you in your home from a public street, etc.  A warrant is required to ENTER your home to photograph you, listen with an aided ear - wiretap and recording, volume enhancing equipment, etc. 

What's important is where the photographer was when he did what he did, and did he have the right to be there. According to him, he was photographing from his home, looking out his window - So yes, he did have the right to be there. He wasn't trespassing on his neighbor's property, on a stepladder, peeking in their window.

Peeping Tom laws fall under sexual deviancy, and not relevant in his case.  In a nonsexual fashion, I'm free to go anywhere I'm free to go and take photos anywhere I'm free to take photos. If my camera happens to be pointed at you on a busy street, well, you've been photographed. How I use and publish those photos does have a legality.

Now, just because he has the right to be an asshole doesn't mean he should take advantage of it.. but that falls into ethics, and is a matter of opinion.

rp_photo wrote:

Or perhaps they were all in on it and are feigning outrage to increase curiosity.

Oooo... sneaky!

Perceptions Edge  wrote:
In Wisconsin there is no doubt this would be actionable.  State Statute 999.50 Right of Privacy States:

(2) In this section, "invasion of privacy" means any of the following:
(a) Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.
(b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.

2(a) could be questionable as to whether it is highly offensive, but 2(b) is quite clear....if he's selling them for up to $7,500 each he's clearly engaged in trade and admits himself he has no no written consent from the subjects.

I am thinking a "reasonable person" would not consider a glass wall a 'privacy barrier'.
As to part b, without identifiable features, I would argue the image is not actually a picture of any living person, but an approximation, an "everyman" image, so to speak.

John aka John wrote:
To those who seem to think this guy is in the right: no, I can't state a law that gives one a right to privacy in his own home. Doesn't mean there isn't one. Means I'm not going to look it up.

If you really believe this guy had a right to shoot people in their own homes, you're also fine with the cops keeping an eye on you without a warrant.

This goes beyond photography.

KonstantKarma wrote:
Oh man.

I hate to play Internet Lawyer but I'm going to have to for a minute.

Law enforcement does not require a warrant to "keep an eye on you". Law enforcement can legally do anything a citizen can do - Listen to you with an unaided ear - such as pressed against your window, follow you on the street, watch you in your home from a public street, PHOTOGRAPH you in your home from a public street, etc.  A warrant is required to ENTER your home to photograph you, listen with an aided ear - wiretap and recording, volume enhancing equipment, etc.

THIS

We live under the illusion of privacy. 

We think we have a lot more than we do.

James Ogilvie wrote:
Details fade into irrelevance when it comes to morals and ethics.

Can you see inside someone's window from your home?  Ok, fine.  They are allowing that to happen.

Is it moral to make a photograph in that situation and share it with the world?

The good taste part of me says no.  The whole world doesn't live in that space where the photograph was taken.  It may be perfectly legal, but I think it's an intrusion nonetheless.

Yeah, but immoral and unethical has been the subject of "art" for ... well... forever.
This is no more immoral and unethical than a painting of two naked women "getting it on" would have been a few hundred years ago.  Today, that same painting gets a 'meh' from the majority of people.

I wont get into the legalities, since I believe this is a grey area.  (Seriously, they live in glass houses!)  So, the people with the best lawyers will probably win.

But I like the concept.  And without the people being identifiable, I do not see it as an unacceptable invasion of privacy.

My two cents, YMMV
Daeda1us

John aka John wrote:
Expectation of privacy is not state law. It's in the fourth amendment. Generally, a residence is subject to the objective test of expectation of privacy, meaning its fairly absolute.

ummmm this really should not be devolving into a constitutional debate but the 4th amendment does not protect you from unreasonable search by photographers.  or even fauxtographers or GWCs.  It (like most of the amendments) protects you from government action only. Now that law has been interpreted to spread down from the root to many government branches and agents but it is not (so far) including photographers.

If you want to know what the government (i.e. police) can do and still fall outside the 4th amendment umbrella, read up on Kyllo vs US.

as for it being an objective test, your Supreme Court has disagreed.

This whole concept of "can you look in a neighbour's window?" is not new. It has been figured out thousands of years ago and enshrined in bot civil and common law.  It governs how buildings can be erected and where windows can be placed.  The photographer was not using any new technology such as thermal imaging or ground penetrating radar or even an IR DSLR.  He was looking through a window that was not covered from another window that was legally positioned in a building.  he was clearly allowed to "see" whatever he saw.  The only question remains is would he be allowed to photograph and publish?  That goes to the state's law. Some jurisdictions have an absolute right. I'm writing this from a place where you can't publish any image of anyone even in public on main street absent their permission. Other places vary. In this case the relevant statute would probably be

§ 50.  Right of privacy

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

but what person? the images contain unidentifiable bodies.  To identify the bodies, the 'victims' would have to out themselves.  Right now there are no "people". So its not a misdemeanor and the victims can't sue under the built-in tort law of section 51 of the same statute for harm stemming from a misdemeanor.


and now back to our regularly scheduled programming...


oh ....and one last thing. the cops can keep an eye on you without a warrant. they do it all the time.  and the evidence gleaned is totally admissible. The only time they fail is if their keeping an eye on you falls into stuff that requires a warrant.

John aka John wrote:
Expectation of privacy is not state law. It's in the fourth amendment. Generally, a residence is subject to the objective test of expectation of privacy, meaning its fairly absolute.

You waive that right to privacy when the curtains aren't closed. If your home faces the public (street) - you stand in a window naked facing the street and a policeman sees you - you get arrested. If he or another civilian moves that curtain to see you then your rights have been violated. 

Anything in "plain view is fair game". Doesn't matter if you are on the first floor or the 14th floor.

I don't agree with the actions of the artist but he didn't break the law far as I know.

John aka John wrote:
Expectation of privacy is not state law. It's in the fourth amendment. Generally, a residence is subject to the objective test of expectation of privacy, meaning its fairly absolute.

I'm pretty sure that the 4th amendment speaks to your rights against search and seizure by the government, not private individuals.  Your rights to privacy as it relates to other persons would be dictated by the laws and statutes as written and enforced by the government.

Just my $0.02 based on my education of American history as taught in Canadian Schools.

Marin Photography wrote:

You waive that right to privacy when the curtains aren't closed. If your home faces the public (street) - you stand in a window naked facing the street and a policeman sees you - you get arrested. If he or another civilian moves that curtain to see you then your rights have been violated. 

Anything in "plain view is fair game". Doesn't matter if you are on the first floor or the 14th floor.

I don't agree with the actions of the artist but he didn't break the law far as I know.

Yep.

Do the people claiming "violation of privacy" open their blinds and curtains and masturbate in front of an open window? Doubtful. I know I wouldn't, if I didn't expect to be seen...

Azimuth Arts wrote:

I'm pretty sure that the 4th amendment speaks to your rights against search and seizure by the government, not private individuals.  Your rights to privacy as it relates to other persons would be dictated by the laws and statutes as written and enforced by the government.

Just my $0.02 based on my education of American history as taught in Canadian Schools.

Still better than the education they get here in America.

KonstantKarma wrote:
Now, just because he has the right to be an asshole doesn't mean he should take advantage of it.. but that falls into ethics, and is a matter of opinion.

Ethics and common sense are often more important than rights, especially when strangers are involved.

For example, you have a right to comment on the looks of a stranger's wife or daughter.

Is it ethical?

Does common sense suggest that it's OK?

Rights become most important when ethics and common sense suggest that the activity should be OK, such as photographing a bridge.

ybfoto wrote:

no I get your point entirely but IMO your making strawman argument.

I do not think that word means what you think it means.  Either that, or you don't understand that a 'telephoto' lens is not necessarily a 'long' lens, nor is it all long lenses.  And if that's the problem ... well, I can't help you with that.  Like I said - I don't think I can explain it to you.

John aka John wrote:
Expectation of privacy is not state law. It's in the fourth amendment. Generally, a residence is subject to the objective test of expectation of privacy, meaning its fairly absolute.

No, the Fourth Amendment prevents the government from intruding.  The photographer is not 'the government.'  In fact, ALL Amendments only state rights that cannot be taken away by the government.  If you have a private club, and you decide that only men over the age of 35 get to vote, Amendments 19 and 26 do nothing, because a private club is not the American government.  You can make that rule if you like, and no one can legally force you to change it.  They can pressure you and make it a public spectacle, but since you're not the government, you don't have to follow the Bill of Rights.  NO Amendment is 'absolute.'

John aka John wrote:
To those who seem to think this guy is in the right: no, I can't state a law that gives one a right to privacy in his own home. Doesn't mean there isn't one. Means I'm not going to look it up.

If you really believe this guy had a right to shoot people in their own homes, you're also fine with the cops keeping an eye on you without a warrant.

This goes beyond photography.

As stated, there are certain things that police officers can do that normal citizens can also do.  For instance, the stakeout would be totally illegal in any sense if police could not monitor you without a warrant.  Also, there are some situations where police can go through your trash without a warrant ... I don't know the exact details, but I think that if you dispose of it in a public place (say, at a park), then they can go through it, but a warrant is needed if the trash is on your property.

But the most important thing is that the only privacy laws that have been defined in black and white, 'doing X with Y equipment is illegal, doing X with Z equipment is legal,' terms apply to the government only.  There is a long list of what the government can and cannot use to monitor you, and in what situations.  No such list applies for citizens.  We know that 'special equipment' is illegal, but we can't look up what constitutes 'special equipment' - that ruling is left to your individual jurisdictions, and only gets defined by taking someone to court.  And that's assuming that every precedent is maintained.

Which means that if you live in NYC, there is probably a long list of what you can and cannot do.  If you live in the boonies, no such list exists.

rp_photo wrote:

Ethics and common sense are often more important than rights, especially when strangers are involved.

For example, you have a right to comment on the looks of a stranger's wife or daughter.

Is it ethical?

Does common sense suggest that it's OK?

Rights become most important when ethics and common sense suggest that the activity should be OK, such as photographing a bridge.

I didn't say it was something I personally would do, as I wouldn't. I'm simply point out that crying legal fouls are incorrect. Politically speaking, I would rather err on the side of more human rights than less - This is a battle of "My right to do something in open view in my home without being photographed" versus "my right to photograph unobtrusively from my home".  It's a sticky wicket, for sure.

KonstantKarma wrote:
This is a battle of "My right to do something in open view in my home without being photographed" versus "my right to photograph unobtrusively from my home".  It's a sticky wicket, for sure.

If those who insist that they not be photographed in public are serious, they should be making their feelings known to operators of traffic and security cameras as well as photographers.

John aka John wrote:
This guy has no defense. There's an expectation of privacy in your home. Period.

And I'm glad there is.

See now, the artist and the gallery should have consulted you instead whatever useless fancy-schmancy lawyers or consultants they likely checked with.

rp_photo wrote:

If those who insist that they not be photographed in public are serious, they should be making their feelings known to operators of traffic and security cameras as well as photographers.

We live in a Big Brother world... The people are convinced that being monitored makes them and everyone else safer (which, of course, it sometimes does) and that trade is worth it to them.

As long as humans have access to technology, I don't think we'll ever go back to a private way of life.

Decay of Memory wrote:

See now, the artist and the gallery should have consulted you instead whatever useless fancy-schmancy lawyers or consultants they likely checked with.

John aka John wrote:
Expectation of privacy is not state law. It's in the fourth amendment. Generally, a residence is subject to the objective test of expectation of privacy, meaning its fairly absolute.

How absolute? Do you wish to argue the photographer is violating the constitution?



and you're sure the right to privacy is in the 4th amendment?

John aka John wrote:
Expectation of privacy is not state law. It's in the fourth amendment. Generally, a residence is subject to the objective test of expectation of privacy, meaning its fairly absolute.

Be very careful with that. 

While it is true that the "right to privacy" is borne from interpretations of the 4th Amendment (and other amendments) and the mountains of case law over 200 years, there is nothing "fairly absolute" (whatever the hell that is supposed to mean) about it.  That was the point of my post above.  You keep wanting to draw a brightline test.  I don't believe that the law nor the constitution on which the laws are based is that clear and I don't believe that there is the absolute right to privacy in your home that you think that there is.

Do I like what the photographer did here? No.  But, I am uncertain as to how the courts would rule if this case ever came to trial.

Zack Zoll wrote:

I do not think that word means what you think it means.  Either that, or you don't understand that a 'telephoto' lens is not necessarily a 'long' lens, nor is it all long lenses.  And if that's the problem ... well, I can't help you with that.  Like I said - I don't think I can explain it to you.

I know exactly what the term means...you created false assumptions from my original post and then argued against those assumptions. Sorry but your argument isnt really complicated and its easy to understand I just personally think its valid at all...

ybfoto wrote:
So after reading the New York Penal code the images this photographer is displaying seems to be within the law. Both the act of making the photos and displaying them. The only way he could be in legal trouble is if he has in his possession any photos from the persons that have

3. "Sexual or other intimate parts" means the  human  male  or  female
  genitals,  pubic area or buttocks, or the female breast below the top of
  the nipple, and shall include such part or parts which are covered  only
  by an undergarment."

and the courts would also have to consider that the individual would have a reasonable expectation of privacy.

Exactly.  And the reason that I didn't bother to cite that is that in Louisiana the laws might be totally different, based on existing case law.  Which means that even though we know it's legal in New York State, it doesn't affect the law in general because - (A) there are 49 other states with their own slightly different versions of the rules, and (B) New York City doesn't actually follow State law - they have their own laws, which are often very different.

As an example, I once narrowly escaped being dragged off the NYC subway in handcuffs because I had a pocket knife in my back pocket.  It was held on the pocket using a clip, meaning that the knife was partially visible.  According to the officers, who seemed to have Good Cop Bad Cop down to a T, it is illegal to ride the NYC subway displaying a weapon - the knife needs to be fully concealed in an inside pocket or in a bag.  Meanwhile, Upstate, the cops want to you make the knife visible; since any hidden blade over a certain length (3 1/2", I think) qualifies as a illegal concealed weapon, you should make it visible if it it's on your person. Same state, same knife, different law.

When it comes to Federal law, there is a delicate balance between enacting the laws that you feel are right, and not pissing off your home state and preventing you from being re-elected.  So as a result, many Federal statutes are just barely specific enough to get the point across, but vague enough to allow for individual states to re-interpret things as they so chose.

Which is why New York (State) takes a very narrow view on what is 'special equipment that invades privacy', while other states may take a much broader view that encompasses almost any photographic equipment.  But both operate under and refer back to the exact same Federal statute.

Do you see now why I say that the Federal law is more-or-less irrelevant?  It's so broad that State law can modify it almost as much as they want, and still claim that they are following it to the letter.

Mystic Flow Studios wrote:
A few months back I saw a news story online which discussed and featured photos taken from the street of people using the toilets in a new building (I've forgotten the location) that featured floor-to-ceiling windows facing each of the individual stalls! Men, women, all were rather easily visible in what most people would think of as among the most private of actions!

Then they were flat out stoopid [sic] for even using those toilets. They should have just pissed and / or shit on the carpets in the hallways as a protest. Or in the street outside the front door.

That just PROVES how stupid people really are.

Studio36

KonstantKarma wrote:
Do the people claiming "violation of privacy" open their blinds and curtains and masturbate in front of an open window? Doubtful. I know I wouldn't, if I didn't expect to be seen...

Exactly my thoughts here.

C h a r l e s  D wrote:
How could one have an expectation of privacy in a full outside window apartment?  If they were really worried about this, can't they put up blinds or drapes or something? 

Fuck them!  Congrats to the artist.  They're not even recognizable.  I've got a couple windows in my house.  I've got drapes to cover them.  I walk around inside with the knowledge that nobody can see me, because I have drapes covering the windows.


Exactly my thoughts here.

well has I have stated in NY because these are not "sexual" in nature these would seem to fall within the law. But many of the shots the shades were halfway drawn and the people were not displaying themselves in front of the window. Also to the best of my knowledge the law(s) does not state that your curtains need to be drawn or make exceptions to what type of dwelling you live in etc. It simply states that a person in their home should have reasonable assurance of privacy. These people were obviously not on street level and the shots were appear to be  taken at some distance...I personally would find it quite annoying if I felt that anytime I had my curtains open during the daytime that that would be an invitation for someone to start taking photos of me. And while looking at state ordinances this action would have been illegal, and criminal and/or civil action could have been taken in other states.

ybfoto wrote:
So after reading the New York Penal code the images this photographer is displaying seems to be within the law. Both the act of making the photos and displaying them. The only way he could be in legal trouble is if he has in his possession any photos from the persons that have

3. "Sexual or other intimate parts" means the  human  male  or  female
  genitals,  pubic area or buttocks, or the female breast below the top of
  the nipple, and shall include such part or parts which are covered  only
  by an undergarment."

and the courts would also have to consider that the individual would have a reasonable expectation of privacy.

mmmmmm... did you read all the laws applicable or just the penal code?
I already posted the appropriate section. and the right of action to sue under.  The penal code just covers criminal actions. it doesnt cover the rest.  the issue of right to privacy is not a criminal matter intrinsically. some states have made a big deal of it and you can have misdemeanors for it, but you have to look beyond the states penal code.

ybfoto wrote:
let me put this way I wont be surprised if in a few months  one or more residents come forward from that building and file suit, claiming  emotional distress and loss of income because they felt they had to move for fear that they were being photographed and watched all the time and that they felt as though they constantly had to have the curtains drawn etc...

In that case, the photographer could potentially be held liable for lost deposits for breaking a lease, or possibly for a realtor's fee.  But if the person sells the place for less than it's worth, that's not the photographer's fault that the seller took a lower offer; since he didn't identify people, it's extremely difficult to show malice, and that's what is required.

Would you be willing to go to court - which will take a lot longer than a month - to recoup a month's rent?  And considering how many people want their fifteen minutes of fame, do you think that the possibility of residents appearing in gallery shows and national news will make the value of the building go down?

I'm not aware of any Federal defamation cases in the US where victims are not identifiable in the images, but based on the existing case law and the circumstances of the images, Gertz makes it pretty clear that if taking the image is not against criminal law in your jurisdiction, then you can essentially only collect damages if the photographer purposely makes you look like an ass.  It's even written in such a way as to overrule any possible regional laws on the matter.

The photographer could very easily be held liable for damages, but doing so (according to Gertz) would require a set of circumstances that can only exist if the subject chooses to identify themselves.  Without that, the amount the photographer could be held liable for is so low as to not even be worth the lawsuit, unless the plaintiff is really bored and wants to prove a point.  Either way, they're likely to spend more than they will be awarded.

Zack Zoll wrote:

In that case, the photographer could potentially be held liable for lost deposits for breaking a lease, or possibly for a realtor's fee.  But if the person sells the place for less than it's worth, that's not the photographer's fault that the seller took a lower offer; since he didn't identify people, it's extremely difficult to show malice, and that's what is required.

Would you be willing to go to court - which will take a lot longer than a month - to recoup a month's rent?  And considering how many people want their fifteen minutes of fame, do you think that the possibility of residents appearing in gallery shows and national news will make the value of the building go down?

I'm not aware of any Federal defamation cases in the US where victims are not identifiable in the images, but based on the existing case law and the circumstances of the images, Gertz makes it pretty clear that if taking the image is not against criminal law in your jurisdiction, then you can essentially only collect damages if the photographer purposely makes you look like an ass.  It's even written in such a way as to overrule any possible regional laws on the matter.

The photographer could very easily be held liable for damages, but doing so (according to Gertz) would require a set of circumstances that can only exist if the subject chooses to identify themselves.  Without that, the amount the photographer could be held liable for is so low as to not even be worth the lawsuit, unless the plaintiff is really bored and wants to prove a point.  Either way, they're likely to spend more than they will be awarded.

oh yeah i know they would need to identify themselves...but again I could see how someone could have a case, I wouldn't make any predictions how it would turn out however.

AVD AlphaDuctions wrote:

mmmmmm... did you read all the laws applicable or just the penal code?
I already posted the appropriate section. and the right of action to sue under.  The penal code just covers criminal actions. it doesnt cover the rest.  the issue of right to privacy is not a criminal matter intrinsically. some states have made a big deal of it and you can have misdemeanors for it, but you have to look beyond the states penal code.

Yea just criminal law...

Zack Zoll wrote:
I think this is an absolutely fantastic project.  Those of you that called the photographer a stalker, a poacher, etc. clearly missed the part about these images being taken out of his own apartment window - not from the bushes or somesuch.  If you can see it in your own home, it's fair game.

And I don't think any of the subjects would have a privacy case against the photographer, even if their faces had been shown.  I don't know NYC law(which is much more liberal than State law), but here in Upstate NY a man was arrested and charged with indecent exposure for forgetting to close the blinds before he put on a porno flick and took care of business.  Which means that, at least according to State law, there is no 'reasonable expectation of privacy' if you leave your curtains wide open.

.....................


The moral of the story, of course, is that if you're doing anything dirty or embarrassing, close the damn blinds.

In Seattle, this would have been illegal. You are allowed to photograph into private property of others, but you are not allowed to use anything with greater magnification than a standard lens for that given camera, meaning the equivalent of approx. a 50mm lens on a 35mm camera. The use of a telephoto lens to photograph into private property is against the law here (at least I've been told so by the Mayors office, where I get permits), and from what I can see of the images, that appears to be exactly what he did. While there may be no recourse via privacy laws, there may be recourse for invasion of privacy in the same way that it would be illegal to hang out in a tree with some binoculars. You can look into anyone's property you like, but you can't do it with magnification; the intent of each being clearly different.