Balenciaga is headed to court after releasing two controversial ad campaigns this month, with one featuring young children holding plush bear bags that appear to be wearing S&M-style harnesses, and another, its Spring 2023 ad, which includes a page from a Supreme Court decision, in which the court upheld a federal statute prohibiting the pandering of child pornography.
In the wake of significant consumer backlash, including widespread calls for Balenciaga’s big-name celebrity ambassadors like Kim Kardashian to boycott the brand, Balenciaga has lodged a contract complaint against production company North Six, Inc. and its agent, Nicholas Des Jardins, the latter of whom designed the set for the Spring campaign, alleging that the defendants engaged in “inexplicable acts and omissions” that were “malevolent or, at the very least, extraordinarily reckless.”
According to a summons with notice filed with the Supreme Court of the State of New York on November 25, counsel for Kering-owned Balenciaga SAS and Balenciaga America assert that they are filing a lawsuit against North Six, Inc. and its agent, set designer Nicholas Des Jardins d/b/a Nicholas Des Jardins LLC (the “defendants”), to “seek redress for extensive damages [they] caused in connection with an advertising campaign Balenciaga hired them to produce.”
Without its knowledge or authorization, Balenciaga claims that the defendants “included certain documents in the campaign photographs,” including an excerpt from the Supreme Court’s 2008 decision in U.S. v. Williams, which appears in the background of an image featuring a collaborative Balenciaga and adidas Hourglass handbag. (While adidas is facing backlash from consumers as a result of the Spring 23 Balenciaga campaign, in which its branding appears, it not a plaintiff in the lawsuit.)
As a result of the defendants’ “misconduct” in connection with the SS23 campaign, Balenciaga alleges that “members of the public, including the news media, have falsely and horrifically associated Balenciaga with the repulsive and deeply disturbing subject of the court decision,” and as a result, the defendants are liable to Balenciaga for “all harm resulting from this false association.” This includes monetary damages of “no less than $25 million.”
In the midst of public backlash to the campaigns, Balenciaga released a statement via Instagram, saying, “We take this matter very seriously and are taking legal action against the parties responsible for creating the set and including unapproved items for our spring 23 campaign photoshoot. We strongly condemn abuse of children in any form. We stand for children safety and well-being.”
It is not immediately clear what claims Balenciaga has lodged against the defendants in connection with the contract lawsuit. (The complaint has not yet been uploaded to the New York state court database.) What is clear is that neither of the photographers behind either campaign have been named as defendants in the complaint. Photographer Gabriele Galimberti, who shot the campaign featuring the children and the bondage bags, released a statement this week, asserting:
“I am not in a position to comment Balenciaga’s choices, but I must stress that I was not entitled in whatsoever manner to neither chose the products, nor the models, nor the combination of the same.”
As usual, he stated, “The direction of the [commercial] campaign and the choice of the objects displayed are not in the hands of the photographer.”
More recently, Balenciaga released a separate statement on Monday, which reads as follows …
Meanwhile, Des Jardins’s agent, Gabriela Moussaieff, stated this past week that her client is “being used as a scapegoat” by Balenciaga.
“Everyone from Balenciaga was on the shoot and was present on every shot and worked on the edit of every image in post production,”
Moussaieff said, adding that the U.S. v. Williams opinion and other documents that can be seen in the Balenciaga ad “were obtained from a prop house that were rental pieces used [for] photo shoots.”
In what is undoubtedly a public relations crisis for Balenciaga, consumers have been quick to question what many are characterizing as attempts by the brand to shift blame in the situation, with no shortage of social media users, for example, highlighting the likelihood that Balenciaga approved the campaign images before they were released and/or uploaded to its website. (The brand has since pulled the campaigns from its site.)
It seems especially unlikely that Balenciaga’s contracts with third-party creatives, including photographers, set designers, etc., do not include iron-clad terms by which Balenciaga has the final right of approval of imagery that bears its name before such imagery is released.
WHAT HAPPENED? Given the typical contract terms for creative projects involving outside contractors and the process involved in releasing ad campaigns by brands of the scale of Balenciaga (from the ensuring the assignment of intellectual property rights in the created works to clearing the images so that other companies’ copyright and/or trademark-protected works do not appear in it without their authorization), what seems likely here is that Balenciaga’s team, including individuals like its chief marketing officer, did, in fact, approve the campaign – both in advance and after it was completed.
But … what also seems particularly probable is that in approving and subsequently releasing the campaign, the Balenciaga team missed the relatively hard-to-spot document that appears to be at the heart of Balenciaga’s suit and its damages claims. In reality, the U.S. v. Williams document was only really visible to eagle-eyed social media users who spotted the case citation after enlarging the photo, which suggests that the court’s slip opinion was easy to miss when the Spring 2023 campaign crossed the desks of Balenciaga’s advertising/marketing team, presumably just one of many projects that were approved at the same time.
Given the likelihood that Balenciaga signed-off on the campaign after the fact (and almost certainly without noticing the inclusion of the Supreme Court opinion), Balenciaga may be in for something of an uphill battle in terms of its case against the defendants.
The potentially more intriguing element here is the strategy behind the newly waged suit. Balenciaga may have decided to initiate the lawsuit in order to “clear its name,” so the speak, in the eyes of consumers (and potentially, its ultra-famous endorsers); after all, the brand is in an undeniably difficult position in light of the back-to-back release of ad campaigns that have prompted consumer ire. The lawsuit does not seem to be helping its cause, however, as consumers are generally viewing the budding litigation as yet another attempt by the brand to place blame elsewhere. In the process, consumers are amplifying the situation and the ad campaigns even further, thereby, potentially causing more damage than if Balenciaga were to seek to remedy the issue out of the public eye.
If this scenario sounds familiar, it is because there is a well-established legal principle for it: the Streisand Effect, which takes its name from Barbra Streisand’s ill-fated attempt to have photos of her Malibu home removed from an environmental activist’s website, which caused the photos to be spread much more widely than before the case was filed. Balenciaga seemingly weighed the pros and cons here and opted for litigation. It will be interesting to see how long the case lasts.
Kim Kardashian says she’s reevaluating relationship with Balenciaga after photo shoot uproar
Kim Kardashian says she is “re-evaluating” her working relationship with Balenciaga after the luxury fashion house featured children cuddling teddy bears dressed in bondage gear in its latest advertising campaign.
The Skims founder and reality TV star, who has been an ambassador for the fashion label, broke her silence Sunday after receiving a barrage of messages from fans and commentators urging her to denounce the brand.
In comments posted to her social media, Kardashian said she had waited to speak out
“not because I haven’t been disgusted and outraged by the recent Balenciaga campaigns, but because I wanted an opportunity to speak to their team to understand for myself how this could have happened.”
She went on to say that, as a mother, she was left “shaken by the disturbing images.”
Balenciaga apologizes for ads featuring children holding bondage bears.
“The safety of children must be held with the highest regard and any attempts to normalize child abuse of any kind should have no place in our society — period,” she told her 74.2 million Twitter followers on Sunday.
“I appreciate Balenciaga’s removal of the campaigns and apology. In speaking with them, I believe they understand the seriousness of the issue and will take the necessary measures for this to never happen again.”
Kardashian, who famously wore an identity-obscuring Balenciaga ensemble to the Met Gala 2021, was among the many celebrities cast in the Balenciaga couture show during Paris Fashion Week in July. Thursday’s season finale of “The Kardashians” focused on her walking in the Balenciaga show.
On Sunday, she addressed her future with Balenciaga in a follow-up post, writing: “I am currently re-evaluating my relationship with the brand, basing it off their willingness to accept accountability for something that should have never happened to begin with — & the actions I am expecting to see them take to protect children.”
Kardashian’s statement comes days after the company pulled the controversial campaign, shot by photographer Gabriele Galimberti and part of a project called “Toy Stories,” and posted an apology on its Instagram page.
“We sincerely apologize for any offense our holiday campaign may have caused,” the statement said.
“Our plush bear bags should not have been featured with children in this campaign. We have immediately removed the campaign from all platforms.”
Galimberti told CNN in a statement Wednesday that the direction and shooting of the “Toy Stories” campaign was out of his hands, claiming he was “not entitled in whatsoever manner to neither chose (sic) the products, nor the models, nor the combination of the same.”
Balenciaga issued a further statement on Instagram apologizing for displaying “unsettling documents,” after a separate campaign featuring documents from a United States Supreme Court case relating to child pornography laws went viral. The company added that it planned to take “legal action against the parties responsible for creating the set and including unapproved items.”
Galimberti said he had “no connection with the photo where a Supreme Court document appears.”
Last month, Balenciaga severed ties with Kardashian’s former husband, rapper Kanye West, amid the ongoing fallout from his anti-Semitic and controversial remarks.
CNN has contacted Kering, Balenciaga’s parent company, and Kardashian’s representatives for further comment.
