This case should be interesting - this is where “reasonable expectation of privacy” butts up against journalistic freedom. I believe that Svenson has stepped over the line here, but the courts could rule otherwise.
The Fosters say they did not consent to be photographed, and would have refused if asked.
They say they were “deeply distressed” to find that their “children’s faces were clearly recognizable,” potentially “compromising their safety and security.”
“Plaintiffs were also greatly frightened and angered by defendant’s utter disregard for their privacy and the privacy of their children,” the complaint states. “Plaintiffs now fear that they must keep their shades drawn at all hours of the day in order to avoid telephoto photography by a neighbor who happens to be a professional photographer.”
The Fosters claim that Svenson stands to profit handsomely from “The Neighbors.” A bit of Internet research showed that a Los Angeles gallery’s exhibition quoted pictures of the children at $5,000 to $7,500 apiece, according to the complaint.
“Upon information and belief, Svenson intends to sell five prints of ‘Neighbors #6’ and ‘Neighbors #12’ for a total of $50,000-$75,000,” the complaint states.
“Neighbors #6 shows Martha Foster holding her son James, with her daughter Delaney standing beside her. Delaney is wearing a bathing suit and James is wearing a diaper.
“Neighbors #12 shows Martha Foster holding Delaney in her arms. Delaney is wearing a bathing suit.”
Svenson’s press statements demonstrate his “disregard” of privacy concerns, the Fosters say.
“For my subjects there is no question of privacy,” Svenson said in a promotional statement, according to the complaint. “The neighbors don’t know they are being photographed; I carefully shoot from the shadows of my home into theirs. I am not unlike the birder, quietly waiting for hours, watching for the flutter of a hand or the movement of a curtain as an indication that there is life within.”
Martha Foster claims she told Foster that she does indeed have questions about her family’s privacy.
“Greatly concerned for the safety and security of her children, plaintiff Martha Foster contacted Svenson on or about May 2, 2013, to express her concerns and attempted to resolve the situation amicably,” the complaint states. “Defendant was unwilling to completely stop selling and displaying images of plaintiffs’ children.”
After this conversation, the Fosters retained attorneys and publicity for Svenson’s project exploded, with NBC, CBS and ABC, the Washington Post, Los Angeles Times and New York Post lining up to profile the photographs, according to the complaint.
“These videos and articles include photographs that clearly picture plaintiffs’ apartment building and many provide its address. ‘Neighbors #12’ continues to be displayed on a Facebook web page attributed to Svenson,” the complaint states.