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The Empire State Building Sued This Photographer for Taking Topless Photos

On August 9, 2013, Allen Henson took photographs of a topless woman on the 86 story observatory of the Empire State Building. Considering it’s legal for women to go topless in New York, Allen didn’t think the photo would lead to legal problems, but...

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On August 9, 2013, photographer Allen Henson took photographs of a topless woman on the observatory of the Empire State Building. Considering it’s legal for women to go topless in New York, Allen didn’t think the photos would lead to legal problems, but this week the owners of the Empire State Building sued him for over $1 million.

The suit claims that “…without seeking or receiving permission from ESB, [Allen] engaged in an objectionable and inappropriate topless photo shoot at this family friendly attraction…” Allen disagrees with this statement. On the day the lawsuit was filed, I spoke with Allen about his photo project, the resulting lawsuit, and what’s objectionable about women going topless in public.


VICE: How did you become a photographer?
Allen Henson: I was also in the military for a pretty long time. I got out a couple years ago. I did a couple tours in Iraq, and they asked me to come back for a third time, and I said, “No, I think I am going to try something different.” I didn't know what that was at the time, but I bought a camera and somehow this snowballed into my calling. I have no formal education. It's just something I'm extremely passionate about.

What led you to take a photo of a topless woman on the top of the Empire State Building?
As an editorial photographer I often shoot some skin content, so I became aware of the laws of New York. (The laws are different everywhere; if you did this in Texas you'd be arrested.) In New York, [women being topless in public] is not illegal in any regard. I just thought I would do a social experiment. I wanted to push the issue, so I did.

How did the model become involved in the project?
Shelby Carter, a friend of mine from Texas, has modeled for Playboy. I told her I had this crazy idea, and she was in town for a few days, and of course she wanted to see all the sights, so the project was killing two birds with one stone. We ran around, saw some sights, and exposed her breasts in public.

What happened at the Empire State Building the day you took the photos?
We paid admission, and then we went up. We were patrons. (I'm not saying it's a David and Goliath situation or anything like that; I think this is a PR stunt for them.) There wasn't really a production or process behind it. She just  [took off her top], and I said “Hey, let me get a shot of that,” and I shot the photo with my iPhone—and that's the part where their legal claims don't really work out. They are saying this was a commercial set. I don't think a cell phone is commercial set equipment.


Where did the topless photos at the Empire State Building appear?
I think I originally put it on my Instagram, and other outlets picked it up off of that. The thing is there were 100 plus people up there, including some who were snapping pictures on their cell phone and uploading things to Instagram. I don't think any of them went through any PR agency to get permission to do that. Is everyone else up there getting sued for a million dollars for taking pictures on their cell phone? I don't think so.

What are they suing you for?
Essentially, they are claiming that I damaged their image—and then there's the words commercial purposes. These photos didn't even make it in my portfolio. [There’s also the phrase] “Inappropriate, objectionable conduct and a potentially dangerous situation.” Apparently breasts aren't illegal, but they create a dangerous situation.

What do you think about the allegation that your photo shoot created a dangerous situation?
I don't think anyone felt they were in danger. I think the law is there to protect us from harm or harming others. Considering the fact that exposed breasts aren't illegal at that sort of place, I have a feeling no one felt it was a dangerous situation. I think it's played out. I don't think it should be a topic anymore. It doesn't seem very complex—definitely not 1.1 million dollars complex.

How do you plan to fight these charges?
I'm going to take a moment. I'm going to talk to my lawyer and see what I should do. I think they might have made a mistake. I think they might want to do the same thing and really think about this. It seems pretty irrational, like [the owners of the Empire State Building] had a couple of cocktails and said, “Fuck it! Let's sue him for a million dollars.”