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Author Topic: Art or Just Plain Creepy?  (Read 59496 times)
AFairley
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« Reply #120 on: May 28, 2013, 06:40:33 PM »
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The plaintiffs in any civil suit would have prove injury. In the case of photographs which don't show any faces, that's going to be almost impossible.

That is not really correct.  The fact of the intrusion into privacy itself constitutes injury (the recoverable damages may be only nominal, however).  So all the plaintiff would have to do is to proved that he/she was observed/photographed -- easy enough to do given the detail in the photos.  Here is what the Restatement (2d) of Torts has to say (I have emphasised a couple sections).  (For the non-lawyers, the Restatements are authoritative compendiums of various areas of the law.  The common law of an individual state may or may not follow the Restatement, but generally it does.)

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Sect. 652B Intrusion Upon Seclusion

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Comments:
a.  The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.
b.  The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.
_____________________________

So you can see that the crux of the case (under the Restatement) is whether being observed/photographed as the occupants were would be (a) highly offensive to (b) a reasonable person.  In this case the "reasonable person" will be a reasonable inhabitant of a glass-walled apartment.

« Last Edit: May 28, 2013, 06:50:49 PM by AFairley » Logged

RFPhotography
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« Reply #121 on: May 28, 2013, 06:50:08 PM »
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A sympathetic jury, a lawyer who gets the jurors to put themselves in the plantiffs' (victims') position and it's not that difficult to see a verdict against Svenson.  There's still the privacy issue as well which can't he ignored and which is outlined well above.  And if a single person can determine who a single image is of, despite there being no faces - via what can be seen in the apartment in terms of furniture or decoration, then the lack of faces is irrelevant.  There's also the fact that he photographed children.  Adults are one thing but children takes the creep-factor to en entirely different level.  If he's compelled to produce other images that he took and those are 'worse' than what he's shown publicly, it makes things even easier.  

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AFairley
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« Reply #122 on: May 28, 2013, 06:57:28 PM »
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If he's compelled to produce other images that he took and those are 'worse' than what he's shown publicly, it makes things even easier.  

And the first thing any plaintiffs' lawyer worth his salt will have done is to send a "document preservation demand" to put the photographer on notice that he should not delete any of his outtakes and then serve document production demands for the production of all the images (I'm using lawyer-speak, the electronic files are considered to be "documents").  A really rabid attorney would get a court order for the forensic inspection of the photographer's computers and CF/SD cards to recover any images that had been erased.  One naughty snap and the guy is toast for sure.
« Last Edit: May 28, 2013, 06:59:14 PM by AFairley » Logged

RSL
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« Reply #123 on: May 28, 2013, 08:23:08 PM »
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Right Doug, and that's exactly why I suspect a win won't be a financial win for Kravitz.  If I were Kravitz, though, what I'd be after would be vindication, not money. Unless I'm mistaken, violation of Kravitz's expectation of privacy is an injury whether or not faces are shown. I also think Bob's argument about the concept of editorial use doesn't fly. You certainly can exhibit street photography as art and get by on the concept of editorial use, but your street photography had better not interfere with a person's expectation of privacy. In other words you'd better be shooting from a place of public access and your subject had better not be in the john or a fitting room or in her home. Reporters can't get away with that either, even though use of their pictures unquestionably is editorial.
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« Reply #124 on: May 29, 2013, 06:20:17 AM »
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Russ, it's not my argument.  I'm simply saying that it may be an argument that could work in his favour.  I pretty clearly said I didn't support the position and also said later that the privacy issues couldn't be ignored.
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jjj
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« Reply #125 on: May 29, 2013, 07:30:03 PM »
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And don't talk any more rubbish about cropping a high res sensor as that is no different from using a bigger lens.
Obviously Doug has reading problems as he ignored the technical demo which contradicted his assertions as well as the admission from Svenson that he used a birdwatching lens whilst he hid in the shadows to spy on his subjects before talking about cropping photos once more.

Your example is ludicrous and your assumptions raise the question of whether you have any clue what a camera is capable of. The point was whether what Svenson photographed was visible to the naked eye and whether he could have revealed as much about about his subjects in a cropped photograph taken with a normal lens. The answer is, absolutely yes.

For proof I offer this cropped photograph, which I took with a 35mm lens on a Sony NEX-7. It's only a 24MP camera, but I didn't have my D800 with me so I went with what I had. The NEX has an APS-C size sensor, giving it a crop factor of 1.5. That gives a 35mm lens a equivalent focal length of a 52.5mm lens on a 35mm camera. That makes it a normal lens. This picture is of an office building across the street from where I work. It's about 200' from the camera--approximately the same distance that Svenson was working with.

Is the technical quality as good as his shots? Of course it isn't. It's grainier and lower resolution and the office window I was shooting was tinted. But all that is entirely besides the point. The point is that he could have revealed just as much about his subjects had he used my camera and lens combination.
And it's no matter how often you trot out this silly line line of reasoning, it's still completely and utterly irrelevant. Cropping a high res sensor is the same as using a long lens, not to mention Svenson admits to using a long lens. And furtively at that.
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nemo295
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« Reply #126 on: May 29, 2013, 07:49:08 PM »
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Obviously Doug has reading problems as he ignored the technical demo which contradicted his assertions as well as the admission from Svenson that he used a birdwatching lens whilst he hid in the shadows to spy on his subjects before talking about cropping photos once more.
And it's no matter how often you trot out this silly line line of reasoning, it's still completely and utterly irrelevant. Cropping a high res sensor is the same as using a long lens, not to mention Svenson admits to using a long lens. And furtively at that.


And you still miss my point. Incredible.

(hint: I'm not disputing that Svenson used a long lens, nor did I assert that cropping is the same as using a long lens.)
« Last Edit: May 29, 2013, 08:16:22 PM by Doug Frost » Logged
AFairley
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« Reply #127 on: May 29, 2013, 08:01:33 PM »
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For those who are interested, here's a link to one of the complaints that have been filed.  https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=xfy1AdVZ3RB8DWxeAVDt0g==&system=prod

NY Civil Rights law 50 prohibits the use of a likeness for commercial purposes without consent (its a misdemeanor)  and 51 allows injunctive relief or damages for a violation.  The other legal theory is intentional infliction of emotional distress.  I believe this is a weak theory, insofar as the cause of action as a practical matter usually requires a showing of "malice" -- some evil intent or ill will directed at the plaintiff by the part of the defendant -- although it is not technically part of the cause of action, and there does not seem to be any malicous intent here.  I'm suprised that the plaintiff's lawyer didn't include a straight breach of privacy claim in the complaint, which would be a bulletproof claim given the facts alleged.  
« Last Edit: May 30, 2013, 11:11:57 AM by AFairley » Logged

nemo295
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« Reply #128 on: May 29, 2013, 08:14:38 PM »
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For those who are interested, here's a link to one of the complaints that have been filed.  https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=xfy1AdVZ3RB8DWxeAVDt0g==&system=prod

NY Civil Rights law 50 prohibits the use of a likeness for commercial purposes without consent (its a misdemeanor)  and 51 allows injunctive relief or damages for a violation.  The other legal theory is intentional infliction of emotional distress.  I believe this is a weak theory, insofar as the cause of action as a practical matter usually requires a showing of "malice" -- some evil intent or ill will directed at the plaintiff by the part of the defendant -- although it is not technically part of the cause of action and there does not seem to be any of that here.  I'm suprised that the plaintiff's lawyer didn't include a straight breach of privacy claim in the complaint, which would be a bulletproof claim given the facts alleged.  

I'm also surprised that the plaintiff's lawyer decided on this approach. If they're basing their complaint on that particular law, then it's an easy win for Svenson, assuming the judge doesn't dismiss the suit. By not showing the faces of any of his subjects, their likenesses are not identifiable by the public. They're merely anonymous human forms.
« Last Edit: May 29, 2013, 08:17:58 PM by Doug Frost » Logged
AFairley
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« Reply #129 on: May 30, 2013, 01:27:42 PM »
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I'm also surprised that the plaintiff's lawyer decided on this approach. If they're basing their complaint on that particular law, then it's an easy win for Svenson, assuming the judge doesn't dismiss the suit. By not showing the faces of any of his subjects, their likenesses are not identifiable by the public. They're merely anonymous human forms.

I imagine this is an issue a number of people on the forum would be familiar with, for commercial use "do I need to get a model release if the person is not identifiable by the public?"
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Rob C
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« Reply #130 on: May 30, 2013, 01:52:04 PM »
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I'm also surprised that the plaintiff's lawyer decided on this approach. If they're basing their complaint on that particular law, then it's an easy win for Svenson, assuming the judge doesn't dismiss the suit. By not showing the faces of any of his subjects, their likenesses are not identifiable by the public. They're merely anonymous human forms.


Really? So you have to see a face in order to recognize your neighbour?

Clothes, body shape, rear views, hair, body language, all of these things are identifiers to people who know you; are they, these people who know you, and who may be shown the photographs and thus made privy to things you may not wish them to see, different from other members of the great unwashed out there? I doubt any lady on her knees, scrubbing the floor, for example, is any the happier to be seen by her neighbours than by anyone else; it doesn't have to be sexual to cause embarrassment.

A bad taste in the mouth is always a bad taste.

Rob C
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nemo295
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« Reply #131 on: May 30, 2013, 04:02:25 PM »
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Really? So you have to see a face in order to recognize your neighbour?

Clothes, body shape, rear views, hair, body language, all of these things are identifiers to people who know you; are they, these people who know you, and who may be shown the photographs and thus made privy to things you may not wish them to see, different from other members of the great unwashed out there? I doubt any lady on her knees, scrubbing the floor, for example, is any the happier to be seen by her neighbours than by anyone else; it doesn't have to be sexual to cause embarrassment.

You seriously think people can be identified by their clothing? Do all your neighbors wear only designer originals?

Few, if any, people, apart from the subjects themselves, would be able to be absolutely sure who is in those photos. That goes double for New Yorkers, most of whom have no idea who their neighbors are, much less how their backsides look. The public at large, and even more importantly, a jury, would have absolutely no clue. That's the important consideration here. If we were talking about a famous photograph of a celebrity like the one of Marilyn Monroe standing over a subway grating with her skirt billowing upwards, we'd all know who it was even if her head was cropped off, but we're not.
« Last Edit: May 30, 2013, 04:04:17 PM by Doug Frost » Logged
Rob C
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« Reply #132 on: May 30, 2013, 05:00:55 PM »
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1. You seriously think people can be identified by their clothing? Do all your neighbors wear only designer originals?

2. Few, if any, people, apart from the subjects themselves, would be able to be absolutely sure who is in those photos. That goes double for New Yorkers, most of whom have no idea who their neighbors are, much less how their backsides look. The public at large, and even more importantly, a jury, would have absolutely no clue. That's the important consideration here. If we were talking about a famous photograph of a celebrity like the one of Marilyn Monroe standing over a subway grating with her skirt billowing upwards, we'd all know who it was even if her head was cropped off, but we're not.


!. If you know anything about women, you will already be aware of how 'typical' a woman's clothing choices are to her; within a relatively small community, such as a block of flats, I'm sure many people could identify others from what they wear. You don't have to be on speaking terms to use your eyes and learn from that.

2. The public at large, or a jury, would be just as ignorant about identity if faces were shown, unless as in your Marilyn example. It's those who do make the identity connection that matter to the victim. Your statement is a distraction.

Rob C
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jjj
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« Reply #133 on: May 30, 2013, 05:02:36 PM »
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And you still miss my point. Incredible.
Your point seems to be that if you can see a window, then spying in it is OK if you don't need a telephoto lens to do so, which wasn't the case here.

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(hint: I'm not disputing that Svenson used a long lens, nor did I assert that cropping is the same as using a long lens.)
Again with the reading problems. I said cropping the image is no different from using a long lens. And can you not even recall your own arguments as you posted this?

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Context counts for a lot in these situations. You have to keep in mind the setting in which Svenson was shooting. This was Manhattan and his neighbors would have been about 200 ft. away. He could have taken those shots and shown just as much with a Nikon D800 with a normal lens and cropped the photos. At most he'd only need about a 135mm lens and do a small amount of cropping. We're not talking about paparazzi lenses here.
Except you do need a papparazzi style lens to get those shots or  drastically crop image - which is to repeat myself again, is no different from using a long lens. So the context is Svenson used a big lens and quite probably cropping image too, all whilst hiding in the shadows so as not to be seen doing his peeping tom act.

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These peoples' lives were in his face when Svenson looked out his window.
Do you even know what that means? Rhetorical question as you obviously do not, in someone's face is being literally inches away from someone's face in a confrontational manner or being blatantly aggressive or is used as an insult such as 'in your face'. None of the meanings have anything to do with going about your own business in your own home.
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nemo295
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« Reply #134 on: May 30, 2013, 07:29:05 PM »
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Your point seems to be that if you can see a window, then spying in it is OK if you don't need a telephoto lens to do so, which wasn't the case here.
Not my point at all, actually. But if you don't understand that by now, repeating myself isn't going to help.
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in someone's face is being literally inches away from someone's face in a confrontational manner or being blatantly aggressive or is used as an insult such as 'in your face'. None of the meanings have anything to do with going about your own business in your own home.
"In your face" also means being "right there in front of you". At least it does where I live. Standing in a big picture window 200' away is being pretty blatantly visible. He would have this view right there in front of him every time he looked out his window. But you don't get that either.
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Riccardo
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« Reply #135 on: May 31, 2013, 03:33:26 AM »
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From a legal point of view Doug is right: "By not showing the faces of any of his subjects, their likenesses are not identifiable by the public. They're merely anonymous human forms". From a legal point of view, a person is considered identifiable when he can be recognized by a stranger, not by someone who already knows him.
From an ethical point of view I agree with Rob when he says that "I doubt any lady on her knees, scrubbing the floor, for example, is any the happier to be seen by her neighbors than by anyone else". Not everything that is legal is ethically right.
Taken individually, the photographs of Svenson are no different from the photograph by Raghu Rai "INDIA. Delhi. Jama Masjid. Evening prayer. Jama Masjid Mosque. 1982" (http://www.magnumphotos.com/C.aspx?VP3=CMS3&VF=SearchDetailPopupPage&VBID=2K1HZORUNEVH6&PN=21&IID=2S5RYDFGZHJ), where we see through a window a woman praying into a private space, certainly recognizable by her friends or relatives, but not identifiable by a stranger, for which she is just a "human form." In the original photograph is also visible a person behind the first window to the left, with his face turned to the viewer and therefore recognizable and it would be interesting to know why this person has been deleted by darkening the window (only aesthetic reasons?).
The whole question, about Svenson's photographs, lies in this: how much time did he spent observing the private lives of his subjects? (intrusion in privacy, as AFairley pointed out) There are only two possibilities that can give an answer to this question:
1) his admission.
2) the acquisition of a large number of photographs of each subject.
« Last Edit: May 31, 2013, 10:14:51 AM by Riccardo » Logged
jjj
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« Reply #136 on: May 31, 2013, 05:31:35 AM »
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Not my point at all, actually. But if you don't understand that by now, repeating myself isn't going to help.
Well it may be that your writing ability is on a par with your reading comprehension. Or your flip flopping around trying to argue Svenson's case gets you all confused when the facts do not tally with your assertions. Like in this risible  line of justification..

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"In your face" also means being "right there in front of you". At least it does where I live.
And in no part of the World does right 200 ft away equate with someone being "right there in front of you". It seems you will redefine English as well as photography to defend your right to spy on people.

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Standing in a big picture window 200' away is being pretty blatantly visible. He would have this view right there in front of him every time he looked out his window. But you don't get that either.
I posted a picture above that was taken at 200' with a lens that has 4x magnification compared to a standard lens/our eyesight. Yet even in that people are pretty darn small in frame as they are well, quite a long way away. And despite this evidence directly contradicting your statement saying you could do this with a normal lens, you blithely dismiss it.

The main thing that completely undermines your argument re using a normal lens and a tiny bit of cropping is twofold. That is not what happened and is not actually possible either. The view presented by the photos is that of a telescope and not what we see with our own eyes and that is the important distinction. Just like if we can hear that someone is talking at a distance but not tell what they are saying, but with the aid of audio snooping equipment we can clearly hear and record every word said. And in the eyes of the law that is an important distinction.
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Riccardo
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« Reply #137 on: May 31, 2013, 06:15:27 AM »
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The view presented by the photos is that of a telescope and not what we see with our own eyes and that is the important distinction.

I'm not sure that this distinction is so important, because of these reasons:

1) photographing windows is not illegal.
2) photographing windows with telephoto lenses is not illegal.
3) publishing images of  unrecognizable people is not illegal.

If we take into consideration these three points for every single Svenson's image,  Doug is right.

4) spying in the private lives of people is illegal, but this is not so simple to prove.
« Last Edit: May 31, 2013, 10:14:21 AM by Riccardo » Logged
nemo295
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« Reply #138 on: May 31, 2013, 09:19:17 AM »
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Well it may be that your writing ability is on a par with your reading comprehension. Or your flip flopping around trying to argue Svenson's case gets you all confused when the facts do not tally with your assertions. Like in this risible  line of justification..
 And in no part of the World does right 200 ft away equate with someone being "right there in front of you". It seems you will redefine English as well as photography to defend your right to spy on people.
I posted a picture above that was taken at 200' with a lens that has 4x magnification compared to a standard lens/our eyesight. Yet even in that people are pretty darn small in frame as they are well, quite a long way away. And despite this evidence directly contradicting your statement saying you could do this with a normal lens, you blithely dismiss it.

The main thing that completely undermines your argument re using a normal lens and a tiny bit of cropping is twofold. That is not what happened and is not actually possible either. The view presented by the photos is that of a telescope and not what we see with our own eyes and that is the important distinction. Just like if we can hear that someone is talking at a distance but not tell what they are saying, but with the aid of audio snooping equipment we can clearly hear and record every word said. And in the eyes of the law that is an important distinction.

The technical differences between a normal lens and a long one are not the issue. And what you call the right to spy on people isn't it either. It's your level of reading comprehension, or rather the lack of it, that's the real issue here. But I must say that I'm very impressed by how extensively you must have traveled in order be so certain what a given colloquialism means in every corner of the world. I'm sure the folks at Berlitz would love to hire you. Finally, I recommend getting your eyes examined if you're having trouble seeing people 200' away from you, because I can see them just fine.
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nemo295
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« Reply #139 on: May 31, 2013, 09:39:18 AM »
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!. If you know anything about women, you will already be aware of how 'typical' a woman's clothing choices are to her; within a relatively small community, such as a block of flats, I'm sure many people could identify others from what they wear. You don't have to be on speaking terms to use your eyes and learn from that.
You've obviously never lived in Manhattan. But ultimately, we're splitting hairs here. Svenson's attorney doesn't have to convince a couple of his subjects' neighbors--he has to convince a jury of twelve randomly chosen citizens.
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2. The public at large, or a jury, would be just as ignorant about identity if faces were shown, unless as in your Marilyn example. It's those who do make the identity connection that matter to the victim. Your statement is a distraction.

It's not a practical consideration in the context of a trial. If, for example, you showed a jury a group of 50 random driver's license photos, or any head shots for that matter, which also included those of the subjects in Svenson's pictures and then asked the jury to match those people with the people in Svenson's photographs, they wouldn't be able to. For all intents and purposes, Svenson's subjects have no identifiable likenesses.
« Last Edit: May 31, 2013, 10:22:19 AM by Doug Frost » Logged
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