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Current Events

Empire State Building Sues Photographer Over Topless Photos

By Anthony Thurston on January 14th 2014

Last August, photographer Allen Henson took some photos of a model while visiting the building’s observation deck, something that he does often. Except this time, he wanted to try a “social experiment.” This experiment was to have his model pose topless and now he is looking at a 1 million dollar lawsuit by the Empire State Building.

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While on the deck of one of New York’s most iconic buildings, the model, unnamed, climbed to an exposed area of the deck and took her shirt off while Henson captured images of it on his cell phone.

Henson is a professional photographer, and he contends that the photos were not part of a photo shoot. “I am a professional photographer, but that doesn’t mean that every time I touch a device with a camera on it I must be conducting a photo shoot,” he said.

The Empire State Building’s management disagrees and says that the images were produced “for his own commercial purpose” and damaged the ESB’s “reputation as a safe and secure family friendly tourist attraction.”

It should be noted that in New York City it is perfectly legal for women to be topless in public. It should also be noted though that the Empire State Building is a private venue, and, therefore, is able to make its own rules regarding nudity on site. According to Henson, the ESB’s guard on duty did not try to stop or remove the two from the premises.

Henson added, while responding to the lawsuit,  “On a side note, she had wonderful breasts.”

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Regardless of your feelings on nudity in public, this should go as a lesson to anyone thinking about shooting nudes outside of the studio to be aware of your surroundings. In some states and cities, these two individuals could have been arrested and jailed for such an act. Know the laws regarding such things, it may save you some trouble with the law as well as your wallet.

Personally, I think it is interesting that the ESB’s guard did not intervene and that now – 5 months later – they decide to take action on the event. Could Henson have used better judgement with regards to children and spectators being around? sure! But, was the incident a commercial photo shoot? I am not so sure.

It was no doubt a photo shoot in my mind, he went to the location with a model and the intention to shoot a topless photo of her. The argument that it was a commercial shoot is a little more murky. To my knowledge he did not sell the images and he was not commissioned to produce them, so to me its probably a no. But, I can see the ESB’s argument as well. I am very curious to see how this plays out.

Do you have any thoughts on this? Do you side with Henson or the Empire State Building on this issue? Share your comments below!

[via MSN News]

Anthony Thurston is a photographer based in the Salem, Oregon area specializing in Boudoir. He recently started a new project, Fiercely Boudoir to help support the growing boudoir community. Find him over on Instagram. You may also connect with him via Email.

Q&A Discussions

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  1. Graham Curran

    Perish the thought that a child should ever see a woman’s breast. It’s the very first thing that most children ever see.

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  2. Mary

    I think he is not being honest, fearing consequences for his actions. I don’t believe they are personal photos, or they would not be so public. Not making money from your photos, is not what makes them personal, it makes them amateur. He chose to make these public, and it unless the ESB makes an example of him, there will be copycat photographers, and thrill seekers following his example. The ESB has a right to uphold the reputation they strive for.

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    • wjp

      While I agree with you, the plaintiff has to show that their reputation was damaged. Unfortunately for the plaintiff it would be pretty easy to show that the number of tourists did not decline due to a few aureola making their debut on the observation deck of the ESB. Maybe not as easy to show would be to research and find other instances of breastography (feel free to use that one on your boudoir photography websites . . . its classy) on the observation decks of the ESB and show that the ESB did not litigiously pursue those instances.

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  3. Chet

    This will be a very complicated lawsuit with huge ramifications! This is far more complicated than it appears, in legal terms.

    It is not clear if the ESB is suing for one or both individually for collectively of the two statements (commercial shoot and damage to their reputation due to a topless photo). Either way, one question that has to be answered is what constitutes a commercial photo shoot? This legal question could ultimately end up as a Supreme Court case. If it was, then what damages did the ESP suffer?

    Next is the reputation issue. The attorneys will have to show that taking of this photo the ESB reputation was damaged (tough though) and if so, to what extent? The question then becomes what damages a tourist attraction as reputation as a safe and secure family friendly tourist attraction? And the how to quantify these damages? And what makes this more damaging that say a man hitting his wife while on the property? You can see where this will go.

    It will be interesting to see the progress of this case. (I predict this will settle)

    All the comments and opinions as to if this was right or wrong are really not relevant to this type of lawsuit. That’s an entirely different matter.

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  4. Trevor

    It’s perfectly legal for women to be topless in New York State. America, they are just boobs. They won’t hurt anyone.

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  5. Victor

    So much for “The Land of the FREE”. I couldn’t see anything wrong. Only pixelation or blanked out pics….damn!

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  6. steve_gee

    trade-mark protected property “property release” lesson 101 the hard way.

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  7. Adrian S

    If this comes to a lawsuit, I think we will see more pictures of nudity up there. Some real, some Photoshop-ed, or any kind of silent protest. They do have the right to deny anyone to take pictures, and they didn’t, and even if it’s a privately owned building, it has public access. A $1,000,000 “fine” for a cell phone image is insane.

    They still have to proof they were damaged in any way. And I would love to see where they find at least one family to come and testify they will never be able to go there and visit because of this.

    What are they smoking ???

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  8. Drew Pluta

    So here’s an easy way to clear this up. Does the ESB allow people to take photos in that area? If they do, they would appear to not have a case. You are either allowed to take pictures there or not. I’m not aware of these being used in any multi million dollar advertising campaigns that would justify financial recourse. I’d be pretty sure they have to prove damages beyond “we just don’t want you to do that.”

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    • wjp

      It isn’t that cut and dry. The question is a two multiple part question. I’ll break it down as follows:

      1) At the time the photos were taken, were people allowed to take photographs on the observation decks of the ESB?
      2) At the time the photos were taken, did professionals need to seek permission before taking photographs on the observation decks of the ESB when said photos are for commercial purposes?
      3) At the time the photos were taken, did professional photographers need to seek permission before taking photographs on the observation decks of the ESB when said photos are not for commercial purposes?
      4) At the time the photos were taken, how did the ESB police professional photography outings on the observation decks of the ESB?
      5) At the time the photos were taken, how did the ESB police amatuer photography on the observation decks of the ESB?
      6) At the time the photos were taken, how did the ESB security staff differentiate between professional photographers and advanced hobbyists or other GWC (Guy/Gal with Camera) types?
      7) At the time the photos were taken, what constituted a commercial photograph? i.e. A photo taken for a paying client? A photo taken and later sold or traded for commercial gain? Or a photo taken for the purpose of publicity?
      8) At the time the photos were taken, how did the ESB define nudity?
      9) At the time the photos were taken, were topless women denied access to the ESB?

      I’m sure others here could add a few more questions to my list, but my point is that it isn’t as cut and dry as “Do you allow photography?”.

      As to the million bucks damages, some states require the plaintiff to demonstrate actual damages (a lot of red states are like this) while other states allow for “punitive” damages that serve only to punish the defendant and to serve notice on future defendants that the plaintiff takes these things very seriously. I’m not sure where NY State fits into the punitive or actual damages categories though. I would think that the lawsuit would itemize the damages.

      Has anyone seen the filing for more details beyond those stated in this article?

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  9. Robert Tannenbaum

    $1,000,000? Doubt he’ll ever see a ROI on that marketing budget.

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  10. Will

    He got what he was after. We’re talking about him. Now he gets to learn that there are consequences for everything. Not just for him but for other photographers as well. Every time one of these guys conducts a “social experiment” it makes it harder for legitimate photographers to get into places for actual shoots. Is the million dollars excessive? Who knows. I find it hard to believe they are hurting for tourists, but I’m glad they’re taking action. Hopefully it deters guys like this from tarnishing an industry that icons far more talented than him have built.

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  11. Bill from NYC

    Another mindless photographer who is pushing the boundaries of common sense and believes they are the center of the universe. What is next for this photographer? Churches? How about a school yard full of preschool children, for his next topless photo shoot? This is one reason why we see photography restricts being created, not for the majority of photographers that have common sense, which can figure out between public and private areas, what is going to cause problems if they cross the line.

    No the restrictions are being created, not all some, to stop the “stupid” photographers who wants to do stupid stunts like this one. Enjoy your 5 minutes of fame as the photographer that shot topless women on top of the Empire State Building. Wow what an accomplishment!

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    • Drew Pluta

      And not even quality photos at that. Shit composition and zero artistic voice. This was like an outburst from a 14 year old boy. “AAHAHA Boobies!

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    • Ben McPhee

      Who are you to judge what constitutes art? I don’t like his work either, but he has the right to express his voice.

      If some “talented” person got up there, and created a jaw droppingly beautiful nude photo, would he have any more “right” to be there?

      Also, lets not pretend he’s the first person to do this kind of thing on the ESB, or in a public space. And plenty of that “art” is applauded. Spencer Tunick is one example. And every revealing fashion photo ever, would be another. (Read A magazine)

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  12. Connor

    As much as I believe the lawsuit is a little silly. The ESB has total legal right to try and prosecute the photographer. The one thing though that I can see will damage the ESB’s case is that no personnel took an action towards the photographer and the model. Also they waited 5 months to press charges. If the ESB simply didn’t know this event took place then that is their own fault. If they have such strong feelings towards incidents like this then it is their job to know what is happening inside their building and to monitor the people that are visiting.

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    • Ben McPhee

      If they didn’t know this occurred for 5 months, there clearly were no complaints. So how was $1M of damage done? They are causing their own damage by bringing this silly case into the public eye.

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  13. Alex Corona

    It’s their property, the photographer should have gotten a permit.

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    • Ross

      but then does every single person who shoots up there need a permit?

      how far can they take this? are they going to sue anyone who shoots a photo up there that they don’t like

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  14. Étienne

    Well, of course it was pretty stupid of him to believe he could do such a thing without having any problem, but a 1 million dollar lawsuit is just ridiculous. I was not there, but I don’t believe he shot a 1 hour hardcore porn movie with 30 kids watching. I mean, nudity is nudity, but 1 million dollar is unacceptable for some cellphone pictures of a pair of tits, isn’t it? Anyways, I hope they will give up the lawsuit and the guy only gets one really good lesson!

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    • Jean Chartrand

      Unacceptable for cellphone pictures really a photographer was just awarded 1.2 million dollars for copyright infringement of his photos of the Haiti earthquake and those photos were done with a cell phone camera.

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    • Anonymous

      If it was a female photographer taking photos of a male model wearing no shirt, same location and same poses, would this have even been an issue? Would anyone have even blinked an eye? I didn’t think so, time to grow up people, the spanish inquisition is over.

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