As a professional musician, I am involved as a subject in a lot of music videos. I was part of a taping yesterday, and at the end the producer had us all sign consent forms. You know, the usual “I grant XYZ Production Company full use of my likeness for any and all purposes, including making money and I will not sue etc etc etc”. That reminded me of my conviction (which I have yet to be disproven) that as a fine art photographer, I am 100% within my rights to take any picture I want, of any person place or thing, as long as I am on public property (also usually if I’m on private property, unless the area has specific rules regarding photography). But being the insecure guy I am, I decided to consult the internet again.
I remembered the case of Arne Svenson, who took that highly controversial voyeuristic series called The Neighbors where he photographed people in their apartments, through their windows, without their permission. I never heard of a legal followup to this 2013 project, so I looked it up. According to The Guardian and explained in more detail by PDN, the court ruled in favor of Svenson, stating that although New York state law prohibits the use of a person’s likeness for commercial purposes without written consent, New York state civil rights laws “yield to an artist’s protections under the First Amendment under the circumstances presented here.”
Note that this judgment was handed down in a civil case that a group of Svenson’s unwitting models brought against him. So while it says nothing about any criminal trespassing or other violations that may or may not have occurred, I’m assuming that the fact that there were never any criminal proceedings brought against Svenson shows that there is no legal ground to stand on. Well, for the government, that is. Svenson has a nice solid First Amendment to stand on.
So, fellow artists, it seems we are safe. At least in New York state.