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Balenciaga Has Filed a Lawsuit It Won’t Win

It’s not every day that a famous fashion house files a $25 million lawsuit against the company that supplied props for a photo shoot. That Balenciaga has been driven to such a bizarre extreme suggests the extent of the damage the designer has suffered from a pair of advertising campaigns that crossed the line.

The veteran contracts professor in me has a prediction: Balenciaga is unlikely to win.

By now, the broad outlines of the controversy will be familiar. The fashion house, which just a few years ago “returned” to its couture roots under creative director Demna Gvasalia, has a reputation for edginess. The company’s current difficulty involves two different advertising campaigns. The one that’s gotten the most publicity featured children holding what the company calls its “plush bear bags” and which look to most people like teddy bears in bondage gear.

The litigation involves the second campaign, an office shoot where the viewer can see on a desk a page from Williams v. United States, a 2008 decision of the US Supreme Court on child pornography. Balenciaga’s lawsuit is against North Six, the production company that provided props for the set. A key prop was “office paper” – which I hadn’t realized is a thing that one rents. The rented paper was supposed to be fictional.

It wasn’t.

Balenciaga says that North Six acted recklessly. North Six says it just got a box of prop paper from its supplier, and adds that none of its people were present for the shoot and the fashion house had final say over how the set was dressed.

Every first-year law student knows that courts tend to be skeptical of claims that the plaintiff suffered harm to reputation from a breach of contract. That fact is surely the reason that the company accuses North Six of acting recklessly rather than just negligently.

Whatever the outcome in court, it might be even harder to win this battle in the court of public opinion. Part of Balenciaga’s problem is that its pursuit of edginess hasn’t exactly built a reputation of the sort that would lead the public to say, “Oh, they’d never do that!” This is the house, after all, which last October had its models, led by Kanye West, march along a runway full of mud – excuse me, “flounce through a slop of brown slush” – and which had previously run into trouble for such products as its “extra destroyed limited edition” sneakers, which retailed at $1,850 and were criticized for glamorizing poverty.

Why then bother with the lawsuit over the office shoot, which only draws attention to the campaign that’s had less media attention? After all, the page is difficult to read in the photograph unless you look hard. But if you do look hard, the text is disturbing.

News reports keep saying that the photograph in question displays “a page” from Williams. True enough. But what appears in the ad isn’t just any page. The visible text is a series of snippets of partially obscured sentences: “a reasonable viewer ... visual depiction ... although the sexual ... must involve actual ... pornography or sex between ... might be covered by the term.”

These quotes aren’t random. They’re all from the section of the opinion that’s been most hotly debated: the majority’s reading of the relevant federal statute as punishing only depictions of sex that “involve actual children” — as opposed to “virtual child pornography or sex between youthful-looking adult actors.”

Although coincidence of course is possible, we have to envision an unlikely chain of accidents. Not only is no other page on the desk easily readable, but the handbag the photo advertises lies atop the papers in such a way as to draw attention to the text.

Don’t get me wrong. I’m not accusing either party to the lawsuit of setting all this up on purpose. I’m suggesting a reason for Balenciaga’s choice to file the suit over the page from Williams and not over the better-known controversy involving the BDSM bears: Because, in the long run, it might be more important to distance the company from any hint that it chose the page from Williams intentionally.

Still, I should add that I’m skeptical that Balenciaga will seriously prosecute the lawsuit. Should the case be litigated, the company will be forced to explain why in haute couture — an industry where every image is subjected to scrutiny over the minutest detail — nobody at the shoot and nobody approving the images noticed what they’d photographed.

Maybe the whole thing will blow over. Other luxury brands have stumbled and had their stumbles forgotten. In 2019, for instance, Gucci was forced to pull from the market a dark sweater – excuse me again, a “balaclava jumper” – that included a pull-up face covering critics said looked like blackface. (It did.) Worse, the garment debuted in February, celebrated as Black History Month.

Perhaps this storm, too, will pass. But the company faces a daunting public relations challenge. Balenciaga, wrote the New York Times recently, “forces consumers to grapple with the very meaning of ‘taste.’” And though the same article blamed much of the outrage swirling around the company on Fox News and QAnon, there’s another way to look at this public relations nightmare: Those who go out of their way to seek controversy sometimes find it.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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