May 18, 2019

"Under current case law, he has no case. Under New York law, you better put your blinds down. He’s lucky he wasn’t standing there buck naked."

Said a lawyer quoted in "Alex Rodriguez may have a tough time pursuing legal action over viral toilet pic" (NY Post). The photograph — taken of the retired baseball star when he was sitting on the toilet (which the NYT Post calls "turd base") was taken from the window of a Park Avenue office building that has a view into his apartment (where he lives with Jennifer Lopez).

I remember blogging about the case the lawyer is referring to. There was an art photographer who'd caught images of people through windows. Ah, yes, here's the old post, from 2013:
"But maybe he should have asked before the gallery opens. Everybody’s talking about it."

Well, if "everybody's talking about it," then the artist made a great decision.
[T]he residents of a glass-walled luxury residential building across the street had no idea they were being photographed and never consented to being subjects for the works of art that are now on display — and for sale — in a Manhattan gallery.
Key word: luxury.

A middle-class value — privacy — is challenged. But it's built into the scheme that only the rich have had their privacy invaded. The artist — Arne Svenson — gets his publicity in the major media. And to top it all off:
Svenson’s apartment is directly across the street, just to the south, giving him a clear view of his neighbors by simply looking out his window.
Easiest art project ever.
“For my subjects there is no question of privacy; they are performing behind a transparent scrim on a stage of their own creation with the curtain raised high,” Svenson says in the gallery notes.  “The Neighbors don’t know they are being photographed; I carefully shoot from the shadows of my home into theirs.”
Here, you can see the kinds of images Swenson chose. And here's Denver Post art critic Mark Rinaldi, writing in 2016, after Swenson won a lawsuit with a First Amendment defense:
Like a lot of people, I find Arne Svenson’s photographs deeply offensive.... Maybe it’s because enough time has passed to really consider the psychological damage to the folks whose privacy was stolen. You can’t, for the most part, recognize Svenson’s subjects as individuals, but you understand they’re actual humans and their sense of personal concealment has been wrecked....

Or maybe it’s because two dozen Svenson photos are now staring us in the face at the Museum of Contemporary Art Denver, which has taken the controversial step of legitimizing them as high art....
Is the A-Rod photographer less able to claim First Amendment protection because: 1. The person is identifiable (so the privacy stake is greater), and 2. The photographer probably did not have any high-art aspirations? Or is the A-Rod photographer more deserving of First Amendment protection because: 1. This wasn't commercial photography, 2. A-Rod is a public figure, 3. A-Rod seems to have used the toilet in a bathroom with the blinds open on a window that looked out on lots of windows?

How many people who didn't even want to see a baseball star on the toilet were subjected to that view? At some point, wouldn't office workers be exclaiming I can't believe he uses the toilet right in front of us like that! The viewers might feel offended (or amused) and are they not allowed to memorialize their experience with an iPhone photo that they text around?

ADDED: There's a 2013 New Yorker article about Swenson (the art photographer):
Made up of floor-to-ceiling windows, the building’s façade offered a panorama of urban living: rows of families in high-visibility nests. Svenson consulted a lawyer and learned that, in a city where people are so tightly crammed together, there is scant presumption of privacy. A few test shots grew into a yearlong obsession; if the building’s residents were home, Svenson had to photograph them. He cancelled dinner plans, skipped theatre dates, and took thousands of pictures. He watched “Rear Window”—four times. “He sits and he waits,” he said, of the character Jimmy Stewart plays. “I feel a certain camaraderie with that.”...

A little before noon, Svenson was at a window in his apartment, which he shares with his partner, Charles Burkhalter. The place is filled with Victorian taxidermy and other ephemera, displayed beneath bell jars. “They’re all mine—much to Charles’s great chagrin,” Svenson said. “It’s in our wills that I am not allowed to stuff him or put him under glass.”
Speaking of Hitchcock... "Psycho" is the one with the taxidermy. An abstract to a scholarly article on "Psycho" and taxidermy speaks of "Highlighting the materiality of the human body through 'grotesque preservation' and thereby creating a discourse on the preservation/destruction duality" and the "urge to construct compliant bodies" that satisfy "the creator’s and the viewer’s desire." You could say that about some photography too.

Back to the New Yorker article:
[A] family appeared in the building across the street. The father was in the kitchen. Svenson pointed his lens toward a playroom. “See the little girl?” he said. Click. The girl’s mother pushed apart the drapes. “Whoa, whoa, whoa!” he said. “I have to admit yelling at them, ‘Come to the window!’ ” He watched and waited...

The girl’s hand flashed into view, gripping a tiara. “Oh,” he said. “You see what she had?” Click. “Dad is where I want him to be,” he said. “When I have three floors going, I am flying.” He pivoted back to the girl. Her mother was reading to her. Then she drew the drapes.

“Some of the fights that break out with the children—it’s like gladiator wars,” he said. He pointed out how, in another apartment, people retreated to the bathroom to make calls on their cell phones. “Electronics have stilled everyone,” he said, explaining that people absorbed in their iPads and iPhones are ideal subjects, illuminated by the devices’ screens. Svenson said that only dogs noticed him....

46 comments:

Temujin said...

Michael David Barrett should have claimed that he took videos of ESPN's Erin Andrews were 'art'. Instead of a huge fine, bad press, and looking like a creep, he could have made money, and got rave reviews on his 'legitimate' art form, while still looking like a creep.

This is National Enquirer as an art form.

Dan from Madison said...

The Erin Andrews deal was nothing like this. She was in a hotel room (with the expectation of privacy) and the creep reversed the peep hole and made the videos.

iowan2 said...

Haven't the Paparazzi settled this legal issue 100's of times?

rhhardin said...

For guys blinds are not for privacy but to keep people from seeing something they don't want to see.

rhhardin said...

If a photo uses the person as a generic person, even if he's identifiable, it's legitimate use. If it's trading on the subject being a star, it's another matter.

JML said...

"The artist — Arne Svenson — gets his publicity in the major media."

This is poor editing. They spelled 'ass hole' wrong.

Ambrose said...

I remember once reading about the astounding number of telescopes sold in Manhattan - where the ambient light makes them useless for traditional stargazing,

Hammond X. Gritzkofe said...

"A middle-class value — privacy — is challenged."

What? Privacy is a right enshrined in the Constitution.

David Begley said...

Creepy and wrong.

And why do people hate A-Rod? I forgot why.

gilbar said...

the GOOD NEWS is:
Thanx to drones and light weight cameras; They can hover outside your back windows, or the 30th floor
Don't want people do record your Every move? Then WHY did you put windows in your home?
IT is Your Obligation to Allow EVERYONE to record your EVERY ACTION.
Your Constitutional right to privacy extends Only to aborting children,
it has NOTHING to do with stopping people from recording your actions inside your home

BADuBois said...

Every time I think we're approaching Peak Stupid™, the finish line gets pushed further away.

Bruce Hayden said...

The problem, in my mind, is urban apartment living. You need to get people all squeezed in together for this sort of privacy concern to really arise. With normal detached houses in cities, and esp in the suburbs, the photographer would probably get himself arrested. Here in small town MT, with a bit more self help required, there is always the chance of getting shot. Probably, but that is always in your mind when violating societal norms. Of course, most everyone in NYC has been disarmed, so that isn’t an issue.

Bob Boyd said...

Photo-sniping some poor bastard on the toilet is just a shitty thing to do.

Roger Sweeny said...

Since you were watching the collected episodes of "Friends" (did you ever make it through them all?), you know the running gag of how they are both disgusted and fascinated by the ugly naked guy across the street who doesn't close his blinds.

tim in vermont said...

He wanted to be famous.

tim in vermont said...

It takes a real discipline and determination to watch all ten years of Friends. It really falls off towards the end. I was convalescing when I did it, and fell asleep every time I opened a book. I know I slept through a couple of episodes, maybe more.

tim in vermont said...

I got the feeling that Courtney Cox really liked the guy who played Chandler. Maybe she’s that good an actress, IDK.

J Lee said...

Honestly, I wouldn't even want to see pictures of J-Lo sitting on the toilet. (When we lived in New York, our apartment's back bathroom had an opaque window, specifically to prevent that kind of peeping on pooping from people on higher floors of neighboring buildings, and our apartment was built in 1947. I'm sure A-Rod has the money to have similar glass installed that allows in light but doesn't let creeps see what's going on.)

tcrosse said...

In the notorious The Contest episode of Seinfeld, a woman exercising naked in the apartment across the street puts Kramer right out of the money,

Birkel said...

Middle class value: modesty.
It is A-Rod's responsibility to protect his own privacy.

Locks keep honest people honest.
Curtains and blinds keep perverts looking elsewhere.

Unknown said...

I enjoy looking at real estate listings to see how architects solve house design problems. One thing I’ve noticed is that in high end houses there are often very large bathroom windows. Many of these are picture window right at the tub but some of them more or less reveal the whole bathroom. They are always photographed without any window coverings of any kind. Makes the room very bright and airy but if I were to acquire one the first thing I’d change is to add window coverings to the bathroom.

Just to be that guy, “opaque” windows would block all light; frosted glass is “translucent”.

Mid-century modern designs sometimes used glass blocks to create translucent windows and walls.

Mark said...

Well, you have three things going on here --

(1) The initial voyeurism of intentionally looking into other people's private spaces and essentially spying on them.
(2) Going beyond just looking -- intentionally looking -- by capturing permanent images in photographs.
(3) Disseminating to the world those photographs of private activities.

Voyeurism in most places is a criminal act. And rightly so. One may inadvertently see a neighbor who has not covered up their windows -- and to that extent a person does not have a reasonable expectation of privacy -- but intentionally looking and sitting in wait to look and taking photos and showing them to others is a gross violation of that privacy.

It is basically the equivalent of people who take crotch shots of women, sometimes using a mirror to look under a dress or skirt. It is no answer to those situations to say that the woman should have worn pants.

Either way, this is a criminal act.

Bob Boyd said...

I had the chance to walk through a high-end lake house that was under construction not long ago. The master bath featured a shower stall that stuck out of the side of the house on the 2nd floor and had a floor to ceiling transparent glass wall so you could look out over the lake while you shower.

daskol said...

I work in a very tall skyscraper, and there's a glass walled residential building a few blocks away that we can see right into. We keep binoculars in the conference room because the sweeping panoramic views of NYC and its towers, bridges and waterways is impressive, but you can also see right into people's apartments. I have definitely had a feeling of anonymity high in the sky, but if your lights are on and/or your curtains not drawn you're not in private. Given the things you see almost daily on the streets and subways here, where people involve you in some of the intimate details of their lives because of mere proximity and, I guess, an assumption of anonymity, I don't think people in this city typically take privacy for granted or as seriously as in most places. If you live in an apartment building, even a well constructed one, you learn a lot about your neighbors, for example. There is a very creepy aspect to this artist's photographs, but they're also fascinating and beautifully cropped. The A-Rod photo only made the Post because he always had a bad relationship with NY sports press.

daskol said...

Maybe also because it would be criminal to waste a Post-pun like turd base.

daskol said...

The photographer is a voyeur, and there are lots of those in this town. It's also full of exhibitionists. If that's degeneracy, then those who think of city-dwellers as tending towards degeneracy, and city life as encouraging it, are onto something.

daskol said...

My neighbor recently told me how impressed he is with the improvement in my daughter's piano playing, and also praised the sophistication in her taste in music (it was almost exclusively Beatles until a year ago, and now she plays more jazz and classical). Years ago I would have perceived a violation of my privacy and felt guilt about violating his peace, and likely assumed the comment was a passive aggressive request to turn down the volume. Nope, thats a friendly, neighborly compliment when you live in adjoining townhouses and are on good terms.

daskol said...

If you're on really good terms with your neighbor, "glad you and the missus are getting along better these days" is even alright.

tim maguire said...

I’d like to see some tweaking to the relevant law. If you can be seen by the naked eye from a public place, then you have chosen to put yourself on view. But if the voyeur needs special equipment or needs to trespass to see you, then your privacy has been invaded.

daskol said...

There's a beautiful newish park constructed on the old elevated train tracks on the west side of lower Manhattan called the Highline. There's also a modern and swank hotel overlooking it called the Standard, with full height windows. This continues today, but here's an article from shortly after the hotel opened.

The Cracker Emcee Refulgent said...

I dig the Swenson photos, which surprised me as I highly prize the middle-class value of privacy. I bet the people who claimed to be outraged by his intrusion eagerly tried to identify themselves in his photos. “Can I get a 2’ x 3’ print of this?”

Ingachuck'stoothlessARM said...
This comment has been removed by the author.
Fernandistein said...

Beginning in or about February 2012, after "inheriting" a telephoto camera lens from a "birder" friend, defendant embarked on a project photographing the people living in the building across from him. The neighboring building had a mostly glass facade, with large windows in each unit. Defendant photographed the building's residents surreptitiously, hiding himself in the shadows of his darkened apartment.
...

Plaintiffs, in particular, learned that their children, then aged three and one, appeared in the exhibition, in the photographs numbered six and twelve. Despite defendant's professed effort to obscure his subjects' identity, plaintiffs' children were identifiable in these photographs, one of which showed their son in his diaper and their daughter in a swimsuit; the other showed plaintiff mother holding her daughter.

Krumhorn said...

At one point, I was working at ABC Entertainment in LA, and my office looked across Ave of The Stars directly into the Century Plaza Hotel. It was a ritual starting around 4 PM to observe the activities of folks checking in. I had a table with many fine optical devices that secretaries and programming execs alike would come in to use to gather sociological data about hotel guests.

The first thing virtually everyone does when they walk into a hotel room is turn on the tv. But as network peeps, we already knew that. What was fun was seeing how quickly the clothes got ripped off and the fucking commenced. And there was more. Much more.

Alas, that ABC building was demolished, and the CAA Death Star now stands in its place. But I am certain I know what those CAA pervs are doing at 4 PM. It’s a rule around here not to try to call to get a deal done during check-in.

- Krumhorn

Fen said...
This comment has been removed by the author.
Narayanan said...

How expensive is one-way v regular windows?

Narayanan said...

De Blasio will be restoring privacy if he can get glassy skyscrapers banned.

Right!?

Narayanan said...

Either privacy or art collaboration.

A-Rod should go for 50-50.

Mark said...

Defendant photographed the building's residents surreptitiously

Why not out in the open where the people being spied upon could see what he was doing? Why stay hidden in the shadows?

The surreptitious nature of the activity displays a consciousness of guilt.

Having windows and letting the air and sun in is not an invitation to the world to come and gawk. People living their lives should not have to retreat to the shadows just to avoid prying eyes that operate from the shadows themselves.

brio said...

Doesn’t this recall Hitchcock’s Rear Window? Viewers were watching the viewer (James Stewart) watch his neighbors just by opening his curtains. He was a professional photographer too. But he helped solve a murder rather than make an art project. We never saw a bathroom window in the film or did we? But those were gentler times with more social than social media interests.

Tomcc said...

First amendment protections?! If Mr. Svenson had parked his car outside of my house in the suburbs and proceeded to take photographs of me and my family he would be violating the law, no? "Peeping Tom"? I have an expectation of privacy in my own home. Does one give up the expectation of privacy when one lives in a densely populated, high-rise building? If I lived in the building, I'd certainly have shades or curtains in the living area, but would I close them every evening? Maybe not. I wouldn't be too concerned about a neighbor(s) seeing me read or watch TV from a casual glance. But- taking pictures to share commercially- that's an entirely different deal!

Tomcc said...

Ranting on...
Seriously, the shit people get away with in the name of art!
If Mr. Trump wants to rehabilitate his image among his detractors, after his second term he should announce that it's all been "performance art"!

Bilwick said...

"Seriously, the shit people get away with in the name of art!
If Mr. Trump wants to rehabilitate his image among his detractors, after his second term he should announce that it's all been 'performance art'."

I've often thought he should kill people. I mean, Lefties have loved, or at least apologized for, homicidal dictators, so maybe if he started offing people his Lefty critics would think better of him.

Etienne said...

They should tax windows...

Big Mike said...

Was A-Rod in a powder room? Or has the creep held onto his pictures of J-Lo getting out of the shower for his personal collection?

Molly said...

(eaglebeak)

The Supreme Court's Roe v Wade decision is based in part on a right to privacy notionally present in the Constitution. I am not in a position to comment on that, although it seems pretty tenuous, but if there is such a right, don't people like A-Rod have the same right to privacy as the women considering whether or not to abort?