in support of free expression
The information presented here by the National
Coalition Against Censorship (NCAC) may be freely redistributed in its entirety,
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may not be sold for profit or incorporated in commercial documents without
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©Copyright 2005 NCAC
WEB DESIGN
Jeanne Criscola Criscola Design
free speech first amendment censorship
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In
1979, Mihail Simeonov, an internationally recognized
sculptor, made an alginate impression of the head
of the fashion model Cheryl Tiegs with her full
consent. Later, Simeonov modified this impression
to make a plaster casting from which he intended
to create sculptures to sell. Although Simeonov
had Tiegs’s consent to make the original
impression, he did not obtain her express consent
to produce the modified plaster cast. When Simeonov
subsequently sued Tiegs to recover for the value
of the plaster cast after it has been destroyed
by an accident in Tiegs’s apartment, Tiegs
claimed that Simeonov never had her permission
to reproduce her likeness and was thus prohibited
from selling reproductions of it. Tiegs claimed
as a defense that Simeonov acted in violation
of Civil Rights Law §50 and §51 which
prohibits the use of the name, portrait, or picture
of any living person for the purposes of trade
without having first obtained the written consent
of such person. This law concerns what is commonly
referred to as the “right
of publicity”.
The Court concluded that an artist can create
a work of art that includes a recognizable likeness
of a person without his or her written consent
and sell at least a limited number of copies thereof
without violating Civil Rights Law §50 and
§51. The Court explained that the plaster
cast was Simeonov ‘s creative expression,
which grew out of the original alginate impression.
Just because Simeonov incidentally intended to
sell a limited number of copies of his creation,
does not mean that he acted "for the purposes
of trade".
The First
Amendment may protect non-verbal expression
in the form of works of art like sculpture. Although
a person's right of publicity is also a very significant
right, it must fall within the constitutionally
protected right of freedom of speech.
After considering the circumstances surrounding
this case where the creative expression of the
sculptor transformed the original, the Court reasoned
that the freedom of Simeonov to disseminate ideas
through this expression trumps the defendant’s
right of publicity as protected by Civil Rights
Law.
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Significance: |
| This
case explores the tension that exists between the
right to control the dissemination of personal information
and the constitutional interest in free speech. |
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| These
materials are not intended, and should not be used, as
legal advice. They necessarily contain generalizations
that are not applicable in all jurisdictions or circumstances.
Moreover, court decisions may be superceded by subsequent
rulings, and may be subject to alternative interpretations.
Corrections, clarification, and additions are welcome.
Please send to ncac@ncac.org. |
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