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.
This case explores the tension that exists between the right to control the dissemination of personal information and the constitutional interest in free speech.