"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....