fumed Robin. “The issue isn’t whether the picture could or should
be shown as artwork, but rather how it was taken—secretly, with-
out our consent.”
“On the other hand,” we observed, “the photograph was taken
of Jay in a public place, so was there really any expectation of
p r i v a c y? R e m e m b e r t h a t t h e F o s t e r c a s e i n vo l v e d p h o t o s t a k en w h i l e
the subjects were in the privacy of their own home, and the court
still sided with the photographer.”
“But doesn’t the fact that Jay is just a child expand our right of
privacy?” Robin persisted.
“Not necessarily,” we replied. “In Foster, some of the photos were
of young kids—including a half-naked girl dancing in a tiara. But
the court still held for the photographer, reasoning that ‘the depiction
of children, by itself, does not create special circumstances which
should make a privacy claim more readily available.’”
We did some more legal research and conirmed that, rather
than being an outlier, the Foster case was actually consistent with
a string of precedents—including the 2003 New York case of
Altbach v. Kulon and the 2002 federal case of Hoepker v. Kruger.
The irst concerned an artist’s publication of a photograph
of a town justice together with a caricature of him as a devil with
a tail and horns. The court ruled that the photograph was a constitu-
tionally protected work of art.
The second case involved the famous collage artist Barbara Kruger,
who copied, enlarged, and cropped a photograph of Charlotte
D a b n e y c r e a t e d b y p h o t o g r a p h e r T h o m a s H o e p k e r, s u p e r i m p o si n g
the words “It’s a small world but not if you have to clean it.” Kruger
exhibited her new photograph at the Museum of Contemporary
Art, Los Angeles, and sold it in the museum’s gift shop and in various
forms, including as magnets and postcards. Hoepker and Dabney
sued Kruger for invasion of privacy and copyright infringement.
But the court held for the artist on the grounds that her photograph
“should be shielded from [the plaintiff’s] right of privacy claim
by the First Amendment. [It] is pure First Amendment speech in the
form of artistic expression... and deserves full protection.”
Robin was surprised to learn that the Kruger court had held for the
artist. “I’ve read that California has strong privacy laws,” she said.
Robin was right. In 2011 California passed a statute making it
easier to prosecute paparazzi, and just last year several new privacy
laws went into effect there that raised the penalties for stalking
and for using drones to record the private activities of others.
Even still, we observed that advances in technology, whether they
be computer imaging or better photographic equipment, have outrun
existing laws protecting rights of privacy. In fact, the Foster court had
a similar observation—and in its decision made an unusual plea to
legislators: “Needless to say, as illustrated by the troubling facts here,
in these times of heightened threats to privacy posed by new and ever
more invasive technologies, we call upon the Legislature to revisit this
important issue, as we are constrained to apply the law as it exists.”
Reacting to Foster, the New York Legislature did recently propose
an amendment to the law prohibiting “the recording of visual images
of a person having a reasonable expectation of privacy while within
a dwelling, when such images are recorded by another person outside
the dwelling.” As yet, this amendment has not been enacted into law.
In Jay’s case, we ultimately dissuaded Robin from initiating
what we believed would be an expensive and drawn-out lawsuit,
and instead we sent a strongly worded letter to her son’s rival.
Happily, this did the trick, and we heard the website was shut
down. At least that’s what Jay tweeted.
THOMAS AND CHARLES DANZIGER ARE THE LEAD PARTNERS IN THE NEW YORK FIRM DANZIGER,
DANZIGER & MURO, LLP, SPECIALIZING IN ART LAW. GO TO DANZIGER.COM FOR MORE INFORMATION.
Brothers in Law (continued from page 53)
Another local player, Fine Art Asia, has also fared well, staging
its 10th edition last October. The fair, which has a strong focus on
Chinese antiques and works of art, branched out to modern and
contemporary art and design in 2015. Organizers also tapped the
growing awareness and market potential of ink art and launched
Ink Asia, the world’s irst art fair dedicated to the category.
But Hong Kong has gone beyond being just a marketplace for
imported art. Works by Hong Kong artists might not have the same
market value as those produced by their mainland counterparts,
but collectors are increasingly giving them attention. Among them
is architect William Lim. Lim has built his collection around Hong
Kong art since the middle of the last decade, and in 2014 he pub-
lished The No Colors, a book that tells the story of his collection and
such artists as Tsang Kin-wah, Lam Tung-pang, Nadim Abbas, and
Morgan Wong.
Lim has told Artshare, the online sales and publishing platform,
that although Hong Kong artists do not currently garner the same
market value as mainland Chinese, he prefers their very personal
approach. He also likes the fact that the production of Hong Kong
art has yet to be distorted by the market. “I’ve seen a boom and bust
situation for mainland Chinese artists. There are some that got too
commercial, and in a way they have pretty much disappeared from
the art scene. So in a way I think it’s a good lesson to learn for Hong
Kong artists,” he said.
While government-run museums and institutions have long been
criticized for their lack of sensitivity to global art trends, particu-
larly contemporary art, a growing number of private individuals have
been setting up museums and galleries, not just to showcase their
own collections but to stage exhibitions that complement the public
institutions, despite the challenge of exorbitant rent.
Adrian Cheng, scion of the family that runs the giant property
developer New World, established the K11 Art Foundation to de-
velop art programs in Hong Kong and on mainland China. Douglas
So, a leading collector of Leica cameras, poured $HK100 million
($13 million) into refurbishing a historical building in Happy
Valley and turning it into F11, a museum dedicated to photography,
in 2014. The year 2015 saw the opening of the Sun Museum, backed
by the Simon Suen Foundation, in the industrial area of Kwun Tong.
Li says Hong Kong residents are known for their generosity, but
philanthropy has long focused on poverty, education, and health. This,
however, has changed as the second- or third-generation members
of prominent families—most of them educated in the West—begin to
turn to arts and culture when they consider charitable outlets.
The Mills is the brainchild of the third generation of the property
developer Nan Fung Group, which built the original factories
in the 1950s. The nonproit Mills Gallery is a cultural institution
“focusing on textile arts to commemorate the textiles industry
that was culturally and economically signiicant to the development
of Hong Kong,” Li explains. Works featured in Leung’s show,
including a new mixed-media installation of a sewing machine
whose needle pierces a spool of ilm, are a response to the legacy
of this industry and the city’s history in the postwar years.
Although mainland Chinese cities such as Beijing and Shanghai
have become more eager to develop their own art markets with
initiatives such as tax-free trade zones, many still believe that Hong
Kong’s unique history, culture, and social values make the city
more complex and international than other Asian locales.
“We have a very strong culture of diaspora, and multiplicity and
diversity are commonplace for our city,” Li says. “We are used to
multicultural environments. We have an established judicial system
and a structure of society that continues to attract people from all
over the world to Hong Kong.”Hong Kong (continued from page 83)
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