When Private Messages Are No Longer Private: The Photographer Looking Over Your Shoulder - Fordham Intellectual Property, Media & Entertainment Law Journal
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When Private Messages Are No Longer Private: The Photographer Looking Over Your Shoulder

When Private Messages Are No Longer Private: The Photographer Looking Over Your Shoulder

When Louis Brandeis and Samuel Warren penned The Right to Privacy in 1890, cameras that could be carried anywhere had only recently been invented and already were sparking fear about the loss of the “right to be let alone.”1 The invention of the portable camera revolutionized not only when and where photographs could be taken, but also by whom.2 Over a century has passed since the article by Brandeis and Warren was written and photography continues to challenge public conceptions of privacy, and so too, do the photographers themselves.

Jeff Mermelstein, a renowned street photographer, has recently released a photo book titled #nyc—the culmination of three years of discretely capturing photos of stranger’s text messages around New York City.3 The subject matter of these text messages touches upon all aspects of human life, including sex, sickness, relationships, and normal workday drama.4 In turn, these photos have sparked conversation of their own—centered around whether the artist violated the photo subjects’ privacy.5 The artist himself stated “[e]ven if I’m on perfect legal ground, I still wanted to try, as best I could, to maintain a sense of anonymity[,]” recognizing that his work could be perceived as invasive.6 The question then becomes whether Mermelstein is, in fact, on “perfect legal ground.”

Privacy protection, following the Brandeis and Warren article, was discussed at length by William Prosser, who recognized four distinct but interrelated torts of privacy: intrusion upon seclusion of another, appropriation of the other’s name or likeness, unreasonable publicity given to the other’s private life, and false light invasion.7 These were adopted in the Second Restatement of Torts.8 New York has been less inclined to expand and recognize rights to privacy, after rejecting a common law right in Roberson v. Rochester Folding Box Co. in 1902.9 This case was soon followed by a statute that prohibited only the use of a person’s name, portrait, picture, or voice without the person’s written consent for “advertising purposes” or “for purposes of trade.”10 There is a well-recognized exception to this for matters that are newsworthy or of public concern.11 This limited privacy protection was intended to protect First Amendment rights.12

These First Amendment rights are at the forefront of the court’s mind when considering whether artistic endeavors violate the privacy statute and New York courts have held that artistic expressions are excepted from New York’s privacy protections.13 Where the alleged invasion of privacy constitutes artwork it does not fall within the statutory meaning of advertising or trade purposes.14

The question of whether photography, unmodified and simply capturing real life, is artwork was raised in Foster v. Svenson, where a photographer used a high-powered camera to photograph his neighbors in their homes, through their windows.15 The Court found that photography was protected as an art form and expanded protection by recognizing that artwork, as a means of conveying ideas, was of public interest, and thus part of the well-recognized exception to the New York statute.16 In Foster, the constitutional protections for the photos were not diminished by the artist’s use of them for profit.17

Based on Foster and the limited privacy protection offered by New York, it seems that Mermelstein indeed has good legal standing for his work. To some, his work would be seen as less invasive than that in Foster, as people are less likely to feel like they have privacy when not in their homes.18 Yet, there remains a sense of unease about #nyc and the photos. Among some street photographers, this complicated the question of what is acceptable to capture and what is too exploitative or otherwise off limits.19 At least one street photographer, prior to the book’s publication, called the photos “the most relevant cultural artifacts of our time,” and spoke of capturing photos of Mermelstein himself “in the wild,” while taking photos.20 For those of us who are not street photographers, the photos are no less provocative and the lack of legal protection may well be unsatisfying. Indeed, the Foster Court ended their decision with a message for the New York State legislature, and I will do the same. “[I]n these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists.”21

  1. See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890).

  2. Robert E. Mensel, Kodakers Lying in Wait: Amateur Photography and the Right of Privacy in New York, 1885-1915, 43 Am. Q. 1, 28 (1991).

  3. Taylor Dafoe, A Photographer Spent Years Secretly Snapping Shots of New Yorkers’ Text Messages. See the Mortifying, Humorous, and Heartbreaking Images Here, Artnet (July 15, 2020), https://news.artnet.com/art-world/jeff-mermelstein-secret-text-message-photos-1894914 [https://perma.cc/4BXK-847K].

  4. See id.

  5. See Emily Dinsdale, This Photographer Snaps the Intimate Texts of Strangers on the NYC Streets, Dazed Digital (July 22, 2020), https://www.dazeddigital.com/art-photography/article/49887/1/this-photographer-snaps-the-intimate-texts-of-strangers-on-the-nyc-streets [https://perma.cc/D2YR-7LQ9].

  6. Id.

  7. William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 388-89 (1960).

  8. Restatement (Second) of Torts §§ 652A-E (Am. Law Inst. 1977).

  9. See generally 64 N.E. 442 (N.Y. 1902).

  10. N.Y. Civ. Rights Law §§ 50 and 51.

  11. See, e.g., Howell v. New York Post Co., 612 N.E.2d 699 705 (N.Y. 1993); Finger v. Omni Publ’ns, Intl., 566 N.E.2d 141, 144 (N.Y. 1990).

  12. Foster v. Svenson, 7 N.Y.S.3d 96, 100 (N.Y. App. Div. 2015).

  13. See Altbach v. Kulon, 754 N.Y.S.2d 709, 712–13 (N.Y. App. Div. 2003).

  14. Foster, supra Note 12, at 97.

  15. Id.

  16. Id. at 102.

  17. Id. at 104.

  18. Id. at 104­–05.

  19. See Dafoe, supra note 3.

  20. Frank Multari, Jeff Mermelstein is a F***ing Anthropologist, PetaPixel (July 7, 2018), https://petapixel.com/2018/07/07/jeff-mermelstein-is-a-fing-anthropologist/ [https://perma.cc/JS48-RB2N].

  21. Foster v. Svenson, 7 N,Y.S.3d 96, 106 (N.Y. App. Div. 2015).

Ilana Blumenthal

Ilana Blumenthal is a second-year J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. She is also the Publications Director for the Fordham Blockchain Society and a Fellow at the Center for Information Law and Privacy at Fordham Law School.