## Facts

- Residents of a glass-fronted condominium building learned that a photographer living across the street had used a telephoto lens to photograph people inside their apartments without their knowledge.
- The photographer took the images from within his own apartment and sought to remain unseen while photographing subjects through the residents’ windows.
- He compiled the photos into a series titled “The Neighbors” and exhibited the series in galleries, where images were marketed and sold as artwork.
- Plaintiffs included parents who alleged their minor children and family life inside the home were captured and displayed.
- Plaintiffs demanded that the images be removed; some were taken down, but images had already been publicized and sold.
- Plaintiffs sued under New York Civil Rights Law §§ 50–51 seeking damages and injunctive relief, moved for a preliminary injunction, and the photographer cross-moved to dismiss.
- The trial court denied injunctive relief and dismissed the complaint; plaintiffs appealed.

## Issues

1. Whether exhibiting and selling nonconsensual photographs of identifiable people taken inside their homes constituted use of a person’s “picture” for “advertising purposes” or “purposes of trade” under N.Y. Civil Rights Law §§ 50–51.
2. Whether the statutory privacy provisions could be construed to reach this conduct given modern technology and heightened domestic privacy concerns, or whether protections for expressive works foreclosed liability.

## Decision

- The Appellate Division affirmed the denial of a preliminary injunction and the dismissal of the complaint.
- The court held the challenged use was a work of art and therefore not “advertising” or “trade” use within the meaning of Civil Rights Law §§ 50–51.
- Because plaintiffs did not plead a statutory violation, they were not entitled to damages or injunctive relief.

## Legal Principles

- New York does not recognize a common-law privacy tort; privacy claims of this type must fit within Civil Rights Law §§ 50–51.
- Civil Rights Law §§ 50–51 prohibit nonconsensual use of a person’s name or image only when the use is for “advertising purposes” or “purposes of trade,” terms construed narrowly to avoid conflict with free-expression protections.
- Expressive works, including fine art, are generally outside the statute even when exhibited, marketed, or sold for profit; commercialization of the artwork does not alone transform the work into statutory “advertising” or “trade.”
- Courts will not expand the statutory categories based on the offensiveness of the intrusion, the domestic setting, or the presence of children where the statutory “advertising/trade” element is not met.
- If the complaint fails to state a statutory claim under §§ 50–51, injunctive relief is unavailable.

## Conclusion

The court concluded that the statutory privacy claim failed because the photographs were used as fine art rather than for advertising or trade, and it therefore upheld dismissal and denial of injunctive relief despite recognizing the serious home-privacy concerns raised by the conduct.


Foster v. Svenson, 128 A.D.3d 150 (N.Y. App. Div. 1st Dep’t 2015)