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Empire State Building Management Files a $1.1M Lawsuit Over Topless Photo Shoot

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The owners of the Empire State Building have sued a New York fashion photographer for $1.1 million after he snapped topless photos of a model on the observation platform without permission.

ESRT Empire State Building claims in its suit, filed Monday in Manhattan Supreme Court, that by having model Shelby Carter bare her breasts during the shoot on at the tower’s 86th-floor observation deck, photographer Allen Henson damaged the facility’s “reputation as a safe and secure family friendly tourist attraction.”

The company notes in the suit that throngs of visitors, including children, were present at the time of the Aug. 9, 2013 shoot, and that Henson used the facility without permission. The building owner wants $1.1 million in damages and an order barring Henson from the premises.

Henson — a combat veteran-turned-photographer who has shot for major magazines and ad campaigns — has attracted extra attention recently with what he calls his “boobs around town” project, in which he challenges social mores and New York City laws on public exposure by having models flash their breasts in restaurants and other public spots.

He told the Daily Mail that the Empire State project/stunt went smoothly and — far from traumatizing young minds — generated little attention from the throngs of tourists there. “People were looking at the view … It was a beautiful day. I don’t think anybody noticed, to be honest.”

Henson seems to be taking the lawsuit in stride, posting on his Facebook page: “I need a large platoon; about 50 topless girls to accompany me to the NY Supreme Court.”

(via Daily Mail)


Image credit: Photograph by Allen Henson


 
  • Darius Davis

    He’s a photographer, she’s a model, the Empire State Building is a business. Each has a role and rights. The Empire State is flexing theirs, just as photographer Morel is flexing his against Getty, and model Avril Nolan is regarding the HIV+ ad she was placed in.

    Property releases are standard while guerrilla style shooting is fun, controversial, and artistic… it can violate copyrights that businesses have in place.

    Kudos to the shooter for trying to be artistic, but doing so and knowingly circumventing the rights of individuals or business has its consequences.

  • Joe Pepersack

    COMMERCIAL photo shoot = permit required. They have no problem with tourists taking snapshots. The problem is that TAKING a photo is not inherently commercial… it’s the USAGE of the photo that is or isn’t commercial. Obviously there is not a blanket ban on photography there, or if there is it’s being enforced in a discriminatory manner (which would be illegal)

    NYC laws are that on public property a permit is not required unless any equipment touches the ground and/or disrupts the flow of foot or vehicular traffic. I do not know if this extends to private property which is open to the public. Because they’re selling a ticket, it’s a contract, and what is and is not permitted depends on the terms of that contract. You can put anything you want in a contract – but that doesn’t mean that it’s legal or that a court will enforce it.

    As I said before “private property” does not grant you absolute rights to control what goes on there if you’ve opened your doors to the public. When you do that your private property legally becomes a “public accommodation”, and a different set of laws and restrictions apply. You give up some of your rights when you invite the general public to come in so that you can take their money.

    It is not a simple case – there are two competing interests which have to be balanced: the photographer’s First Amendment rights and his right to use a public space, versus the property owner’s rights to control their property. In general, First Amendment rights have a higher priority because the Constitution trumps lesser laws.

    In general, shopkeepers can “ban” photography (or any other activity like skateboarding, line-cutting, or soliciting) on their premises – but this is a function of trespassing law. The most they can do in general is ask you to leave, and charge you with trespassing if you don’t. They generally cannot sue for damages, destroy your photos, or prevent you from using them — unless the photo includes copyrighted artwork, which opens a whole other can of worms. [EG taking a photo of a statue which is in a public place may or may not constitute a "derivative work" which infringes the copyright of the sculptor, depending on a lot of different variables]. Where it gets interesting is that some buildings (EG the Sydney Opera House, the Flatiron Building) are themselves copyrighted artworks by their architects.

    Balancing conflicting legal rights and interests is not simple. This is why we have courts.

  • Snarkasaurus

    tl;dr

  • Joe Pepersack

    Private property isn’t completely private once you open your doors to the public. Once you do that, it’s a public accommodation, which means you have to comply with non-discrimination laws (among a lot of other regulations).

    Because it’s completely legal for women to go topless in public in NY, they’re on very shaky legal ground on that basis. If they ban “commercial” photography without a permit, whether or not they have a case depends on the definition of “commercial” and whether or not the shoot in question satisfies that definition.

    To me it sounds like they’re over-reacting badly. I have no idea what rationale they’re using to come up with $1.1M in damages. It’s probably just an intimidation tactic to force the photographer to surrender the photographs and agree a trespassing ban. If they take it to trial, they’re going to lose – there have been several cases like this in NYC and the case law is firmly on the side of the photographer.

  • Allen Henson

    Thanks Joe, I’m going to use this.

  • Allen Henson

    And this.

  • Snarkasaurus

    And what “social norm” is he challenging exactly?

    His “project” is having models flash their boobs in places like restaurants. Most restaurants have a “no shoes, no shirt, no service” policy. Why not have a barefoot, shirtless man pose in these places? It’s just as unacceptable and he’d probably get the same response from the establishment owners … oh, but it wouldn’t be as “edgy” or “shocking” because it wouldn’t include boobs.

    He’s not challenging social norms, he’s just pandering to them for the obvious response, which judging by the comments in this thread is exactly what he’s getting.

  • OtterMatt

    For everyone who thinks “oh, this isn’t offensive, wtf?”, I can only say you need to grow the heck up. Your personal preferences do NOT give you the right to infringe on others’ mores and traditions, and your obvious love for yourself above everybody else around you is plain in the way you denigrate the preferences of others because you don’t want to agree with a societal norm.

    As for the shoot, this photographer is clearly and obviously a shock-job who wants his name in the public mind at any cost. There’s no respect to be had in this. Simply challenging something brashly regardless of morality or usefulness is the work of a small-minded person. He’s not waging some great war against the fuddy-duddy establishment, he’s just out to generate pageviews and make a quick buck.

  • Allen Henson

    Much appreciated.

  • EPOC

    Land of the free, huh?

  • Joe Pepersack

    Not all that shocking in NYC. It’s not original – I can think of a half-dozen photographers who do public nudity in NYC all the time as their stock in trade going back at least a decade.

    There have been numerous judgements, both state and federal, which have firmly established the legality of artistic public nudity and the photography thereof in NYC. NYPD has lost numerous lawsuits for false arrest over the issue, and has been forced to issue a memorandum to educate their officers about the legality of female toplessness and full artistic nudity.

  • Gjergji Bullari

    That might be true in some places but not everywhere, since the building is private property that does not apply. The management reserves the right to do as pleases on their property.

  • Gjergji Bullari

    That’s not the point.

  • James

    YOUR personal preferences do NOT give YOU the right to infringe on others’ mores and traditions, and YOUR obvious love for yourself above everybody else around you is plain in the way you denigrate the preferences of others because you don’t want to agree with a societal norm.

  • James

    I can only say you need to grow the heck up.

  • Snarkasaurus

    Alright, so in that case … what exactly is this guy challenging? Sounds like old news, in which case making the headlines (for shock value) seems like the only purpose.

  • Michael Bonocore

    My question is, if the photographer went through all this trouble to set up a shoot that could wind up costing him a million dollars, why the hell is he shooting it from behind a dirty window with an iPhone? His watermark is on that image, so I am assuming he took it :)

  • Josh Zytkiewicz

    Equal protection laws still apply on private property.

    Yes, a private property can say no photoshoots. But, look at the photos. This was not some huge production. This was one model and one photographer with a camera. If she had kept her top on these images would look no different than the dozens of other tourists on top of the building that day.

    The only reason this is a story is because ESB is afraid of boobs.

  • Sky

    America at it’s best:
    – Wearing naked gun == everyone are fine
    – Wearing naked breasts = $1.1M lawsuit.

  • Maxwell Enochs

    wow that is supper disgusting

  • Maxwell Enochs

    what have we come to…-_-

  • Josh Zytkiewicz

    Replace “boobs” with blacks, gays or jews and see if you still agree with what you wrote.

  • SaveTheWorldGetTheGirl

    Ironically, all the people demanding that a topless woman shouldn’t be viewed any differently than a topless man have effectively made “boobs” THE focal point of this stunt. Way to go.

    The other thing I find interesting about this whole story is how many people there are scoffing at “America” for having a problem with topless women and demanding that it shouldn’t be offensive (despite that being a societal norm for America). These are likely the same people who complain about Americans going to other countries and not observing cultural norms.

  • Snarkasaurus

    Boobs aren’t a race, religion or sexual orientation, dumbass.

  • Josh Zytkiewicz

    Having boobs (i.e. being a woman) is just as a defining a characteristic as being black, gay or jewish.

    Boobs are one of the things that separate women from men. When women are forced to hide a part of their body that men are not that places women in a lower position.

  • Matias Gonua

    It’s a pair of tits. Big deal. You can walk around with a gun and noone gives a damn.

  • Snarkasaurus

    What you’re saying is contradictory. On one hand you’re saying breasts are a defining characteristic for women, but then on the other hand you’re saying womens’ physique should be viewed identically to men by having their breasts disregarded. Huh??

  • http://www.Azety.fr/ Azety

    Since few months, when this website talk about photographer, its because photographer did something stupid and useless but people still talk about it.
    This kind of personn just want to be in middle of attention.

    ” look at me look at me look at me look at me look at me look at me ”
    Attention whore.
    Not photographer.

  • Joseph Campanella

    Well, breasts are great. Don’t care if kids see them either.

    BUT, when people try to “challenge social norms” they just come off as angry teenagers, which is hilarious.

    Don’t they have anything better to do then take uninspired pictures of topless women at the top of the Empire State building?

  • Vin Weathermon

    Suing for damages guys; they have to prove that the boobs have materially damaged their ability to make money off of the visitors. Given the publicity, I’d wager a good lawyer could sue the Empire State Building folks over the additional income derived from his photography (without his permission:-) Hey don’t laugh…stranger things have happened.

  • Nate Parker

    I would have loved to witness this as a young boy and would remember it forever! NYC the way it’s supposed to be= edgy and a little bit dangerous and racy not the new banana republic and starbucks disney world that bloomberg created. Bring back the 70’s in NYC!

  • Frodo

    The empire state building is not public property

  • Jules

    Seems to me that a bunch of men are involved in make these comments below, so no surprise with the content and ‘the it shouldn’t be a problem-you need to lighten up’ attitude. There is nothing beautiful about this photo shoot or how he is portraying women. Tell me where and how does he intend to use the photos? I suspect the answer will throw most of the men’s arguments to the trash.

  • Mykolas Karanauskas

    What boobs? I only see pixelated rectangles….

  • Mykolas Karanauskas

    there’s no boobs in the picture, only pixelation

  • Alan Klughammer

    Maybe the point of the art project is to show how silly our “shameless” point of view is. Why couldn’t a person walk around nude? Babies do it all the time.
    People have such a phobia about the human body. It is just sad…

  • Logan S.

    “…and other public spots.”

    Public right?
    So… no case…

  • Sav

    Traumatizing young minds…. Seriously?
    They’re just breasts. Men have them too. Children should be aware and comfortable with nudity, not taught to shun it.

  • Sav

    Why do you think animals and humans should be different? Because guess what, we aren’t. Actually no, we are. Except humans are far worse than animals. Humans have huge egos, act like assholes, and destroy the planet. Animals do not. Animals have been here as long as we have, likely longer. Regardless of that point, what is your huge issue with nudity? I’m sensing some serious issues with your upbringing here.

  • Sav

    Both men and women have breasts, women just tend to have larger ones (unless you’re an overweight man). If a man is allowed to be topless, a woman should be allowed to be as well. The point he was making wasn’t that breasts are a race, it’s just another “object” to use to discriminate against women. How do you think people would react if they sued someone for photographing a black individual there? I am willing to bet if a man had been standing there casually with his shirt off, this wouldn’t even be news. That is where the problem is; if you’re going to require women to keep their shirts on, then men should too.

  • Sav

    So true. Tourists are allowed to take photographs of each other at the top, and I’m also willing to bet that there has been a topless man up there at some point in history, and he probably got his photograph taken. This should be no different.

  • Sav

    Newest? Showing skin is some sort of “new fad”? Women and men have been photographed, captured, painted, etc. in the nude for centuries. Men have been displayed in nothing but their underwear on billboards and in magazines for years and years. Ever seen an Abercrombie and Fitch? The old A&F catalogs 20+ years ago used to err on the side of being soft-core porn. Showing skin isn’t some sort of “new” fashion statement. And what is the problem with showing skin? Showing the skin on your chest should be no different than showing the skin on your arms or legs.

  • Timothy Nguyen

    I don’t understand the world’s criminalization and treating the human body as taboo. Wow, a woman’s breasts provide a purpose that a man doesn’t have – this shouldn’t make it a negative. It doesn’t pose a danger to themselves, others or the society at large. Let’s just remember that I dunno…just under 50% of the world’s population has them (that’s like…3.5 billion people now?), why are we so afraid of them?

    I’m so fed up with these ridiculous childish arguments against nudity. Nudity =/= sexuality or pornography. Nudity doesn’t cause sexual violence or obscenity, rapists cause rape. My point is, I can understand that private property and owners can make their own rules but to me, it just seems extremely butthurt to pull a 1.1 million dollar lawsuit.

    /rant

  • David Vaughn

    All this talk about what’s legal and not legal…I…I just want to see the photos. Now I’m curious as to what these $1.1M photographs look like.

  • Rob Elliott

    Here is the simple facts, A woman is not allowed to expose her Nipples in many places… she can be standing totally nude in the park with pasties and a small bottom covering her bum and private parts, and that is fine… the issue is with the Nipple. Male nipples were also seen as obscene prior to the 20th century, and at various periods in European history a woman’s breasts were not. A great example is the Island of Crete where women’s clothing actively exposed a woman’s breast, and clothing in the Roman empire also exposed a breast of young woman for fashion and culture.

    In today’s society the Breast particularly the nipple for some reason, has been sexuality. It’s not different then a cows utter. It’s Sexualized because he have made it so.

    The Empire State Building is private property and as such can claim a Family Friendly Atmosphere outside the decriminalization that occurred in New York. (it’s the same in Ontario, Canada)

    More so the purpose of the photo was part of an on going project by the photographer to have women expose them selves in public because of the taboo nature of it.

    A man or a Woman exposing their upper chest is basically the same and shouldn’t be sexual… in many cases the general public would see it as unattractive and undesired no matter the gender, flabby is flabby.

    We where clothing for several reasons, extra protection for the elements, religious/cultural modesty and fashion. Not everyone has the same religious/cultural modesty. My clothing wearing is much more about the elements at times then Fashion or Religious/Cultural Modesty.

    Nudity is perfectly natural, but we have been conditioned to sexualize or shame nudity for that reason it isn’t right to be fully nude in public. If a woman for legitimate reasons feels the need to take off her top for personal comfort on a hot day in the same way as a male does.. so be it.

    On August 13th it was in the mid 20s (Celsius) and at the top of the building the wind often makes the general temperature feel cooler. The Wind makes wearing a shirt advisable for the elements.

    As such there was no reason to do this unless it was for other means, as such the Empire State Building owners will likely have a case.

    However, upper body nudity is just as natural for men as for women.

  • Rob Elliott

    I’ll start by saying I know this is likely a TL:DR for most.

    Here is the simple facts, A woman is not allowed to expose her Nipples in many places… she can be standing totally nude in the park with pasties and a small bottom covering her bum and private parts, and that is fine… the issue is with the Nipple. Male nipples were also seen as obscene prior to the 20th century, and at various periods in European history a woman’s breasts were not. A great example is the Island of Crete where women’s clothing actively exposed a woman’s breast, and clothing in the Roman empire also exposed a breast of young woman for fashion and culture.

    In today’s society the female breast particularly the nipple for some reason, has been sexuality. It’s no different then a cows utter. It’s Sexualized solely because he have made it so. They are cute.

    The Empire State Building is private property and as such can claim a Family Friendly Atmosphere outside the decriminalization that occurred in New York. (it’s the same in Ontario, Canada) It is private property and can enforce a dress code. (though it should be posted)

    More so the purpose of the photo was part of an on going project by the photographer to have women expose them selves in public because of the taboo nature of it. This makes the shoot self-promotional, and could fall under commercial. More so the Empire State Building does prohibit “Professional cameras, equipment and camera stands: mono-pods, bi-pods and tri-pods”

    A man or a Woman exposing their upper chest is basically the same and shouldn’t be sexual… in many cases the general public would see it as unattractive and undesired no matter the gender, flabby is flabby.

    We wear clothing for several reasons, extra protection for the elements, religious/cultural modesty and fashion. Not everyone has the same religious/cultural modesty. My clothing is worn much more for the elements at times then Fashion or Religious/Cultural Modesty.

    Nudity is perfectly natural, however we have been conditioned to sexualize or shame nudity and for that reason it isn’t right to be fully nude in public. If a woman for legitimate reasons feels the need to take off her top for personal comfort on a hot day in the same way as a male does.. so be it.

    On August 13th it was in the mid to high 20s (Celsius) and at the top of the building the wind often makes the general temperature feel cooler. The Wind makes wearing a shirt advisable for the elements.

    As such there was no reason to do this unless it was for other means, as such the Empire State Building owners will likely have a case.

    However, upper body nudity is just as natural for men as for women, the empire state building though can set it’s rules as it sees fit.

  • http://www.Azety.fr/ Azety

    You pay the ticket, and everybody talk about you even if you have done nothing intresting.
    MARKETING.

  • Harlon Katz

    If it is not ILLEGAL for women to be topless in NYC, what is the issue? It is now treating the equally with men.

  • Brady

    A woman being topless is this kind of thing that works up people who don’t have anything else to be worked up about.

  • Scott Henry

    I have an Empire State building in my pants for that hottie. Giggity.