Was it The Wolf of Wall Street scene, or an actual quote by Phineas T. Barnum, the 19th-century showman and circus owner, who said “There’s no such thing as bad press or bad publicity”?
But does it hold in a world where narratives can shift overnight—where just one news piece gone wrong or one bad review has the potential to open a can of worms and change the way the entire world perceives you?
The Art of Controversy: Balenciaga’s PR Playbook
This brings forth two types of responses: (1) taking caution to a professional level, ensuring that every layer of your marketing campaign is carefully curated to avoid mishaps, and (2) going all Balenciaga about it (yes, the use of the brand name as a verb is very much intentional). This is because Balenciaga has created a reputation for itself—delivering some of the most controversial marketing campaigns in its recent history. Worth mentioning are: 2022’s campaign featuring a $1,790 trash bag pouch—a luxury leather bag designed to resemble a garbage bag—or the 2021 Croc stilettos, followed by the destroyed sneakers of 2022 retailing for $1,850, the brand has consistently thrived on provoking reactions.
And now, in this blog, we explore how its latest marketing campaign has again placed Balenciaga at the center of attention. The brand has taken another bold leap, like accessing a time machine to rewrite history—reaping the benefits of marketing nostalgia by inserting itself into some of the most iconic moments in entertainment and fashion history.
But of course, this wouldn’t have been possible with a traditional photoshoot like other brands typically do. Instead, Balenciaga licensed old paparazzi images of stars like Tyra Banks, Alessandra Ambrosio, Paris Hilton, Claudia Schiffer, Amber Valletta, and Lucy Liu and, through digital manipulation, Photoshopped its iconic Le City bags into the hands of these celebrities, creating the illusion that they had been carrying these bags all along.
The objective? To make the Le City bag feel like a timeless staple—something so ingrained in pop culture that it was always there, seamlessly blending into the lives of the icons we grew up watching. Because, after all, who wouldn’t want to be iconic?
The idea of digital restructuring isn’t exactly something that was done for the first time—it has been experimented with time and again in the world of innovative marketing. It’s worth mentioning the examples that took the world by storm, such as Louis Vuitton’s “Core Values” campaign, which featured deceased cultural icons with the intent of maintaining the brand’s ethos of timelessness and heritage. The campaign showcased historical figures like Francis Ford Coppola and Muhammad Ali, and in some other instances, even digitally resurrected icons like Salvador Dalí and Marilyn Monroe. This seamless integration into a modern-day setting reinforced the illusion that they were lifelong Louis Vuitton patrons.
Whilst the brand’s approach appeared beautifully artistic, it also raised ethical questions—should a brand be allowed to capitalize on figures who never consented to such endorsements?
Along the same lines, we also have Coca-Cola’s 2018 “Bring Home the Magic” campaign, which digitally recreated Elvis Presley, Marilyn Monroe, and Ray Charles, making it appear as if these celebrities were enjoying a bottle of Coke in modern times. This was a bullseye attempt at evoking nostalgia and timelessness, but much like Louis Vuitton’s campaign, it raised concerns as to whether these icons’ legacies were being commercialized without their consent.
Another recent example would be Bottega Veneta’s 2023 campaign, where the brand licensed real paparazzi images of A$AP Rocky wearing its clothing. The only difference between Balenciaga’s approach and Bottega Veneta’s was that Bottega didn’t alter the images—they simply embraced the raw, candid aesthetic of paparazzi culture, using real-life moments to push their brand without fabricating associations.
Intellectual Property and the Legal Dilemma of Digital Manipulation
Now, the obvious question—how does a little tweaking here and there, bringing forth icons of their time into the contemporary realm, raise intellectual property tussles? It does when fundamental questions about ownership, modification rights, and commercial exploitation of creative works arise with such digital transformations.
The very intersection of digital manipulation of images and branding impacts multiple areas of IP protection, including copyright law, trademark law, the right of publicity, and moral rights.
Copyright concerns come into play when original photographs captured by paparazzi or professional photographers are utilized without explicit permission, sale, transfer of rights, or whatever contractually agreed-upon terms exist in the licensing agreement.
The right of publicity protects celebrities, ensuring that their likeness cannot be used for commercial gain without explicit consent—not only infringing upon their personal rights but also bringing them into the crosshairs of misleading consumers into believing that they endorsed the product. Trademark law comes into the picture when these altered images falsely create a brand affiliation that didn’t exist in the first place.
Finally, moral rights, which can vary according to the jurisdiction, play a crucial role in deciding the fate of the raised legal dispute. For instance, in France, for example, the original creator of a work has the right to object to modifications that distort its intended meaning or integrity.
Playing into the psychology that we tend to pay more attention to these ‘original’ paparazzi shots than we would to a traditional photo shoot conducted by the brand, Balenciaga leveraged the idea that “our culture has shifted in favour of the candid and lo-fi,” as we prefer authentic experiences over curated ones. Balenciaga’s campaign also featured a faux watermark inspired by photo agencies like Backgrid or Getty, further enhancing the essence of authenticity. With the advent of sophisticated technology being increasingly utilized in every sphere of life, their growth and dissemination have only transcended the bounds of imagination in terms of what is possible.
For further analysis of the legal implications, how this practice is treated under various jurisdictions is explored.
Copyright and the Ethics of Digital Endorsements
As per U.S. copyright law, photographs are deemed protected as “pictorial, graphic, and sculptural works” under 17 U.S.C § 102(a)(5) of the Copyright Act, 1976, granting exclusive rights to photographers to reproduce, distribute, and create derivative works of their images. In the case of J.H. Mendler v. Winterland Productions (9th Circuit), it was established that a digitally altered photograph ceases to be the original when it significantly departs from the original composition. If it is found that the modifications made by Balenciaga were indeed substantial, then a copyright claim by the original photographers or agencies like Getty or Backgrid could arise.
From the perspective of Indian courts, the Madras High Court, in the case of Associated Publishers v. K. Bashyam, observed that a photographer who combined multiple images into a new work retained copyright over the final image. The question before the Court was whether Mahatma Gandhi’s portrait, made by combining two photographs of him, constituted copyright infringement. The ruling established the tenet that “the originality required is not originality of ideas but of original skill and labour.”
Balenciaga, based on the precedents explored in both the U.S. and India, could face copyright infringement claims due to its extensive alterations. Unless Balenciaga proves that it had obtained the required rights in the images before digital manipulation and its commercial circulation. From the jurisdictional parameters of the EU, copyright protection for photographs falls under Directive 2001/29/EC (InfoSoc Directive) and the Berne Convention for the Protection of Literary and Artistic Works (1886), which serves as an international copyright agreement that establishes minimum standards for copyright protection across 181 member countries.
Additionally, Section 4(2) of the UK Copyright, Designs and Patents Act 1988 (CDPA) defines a photograph as any work created by recording light or radiation. This grants original copyright protection to paparazzi or agency photographers, reinforcing their exclusive rights over the images they capture.
Celebrity Image Rights: A Legal Battleground
Looking beyond intellectual property rights, the other rights that come into play are the Right of Publicity and false endorsement claims. In the U.S., the Right of Publicity provides protections for individuals against the unauthorized commercial use of their name, likeness, or persona, as stated in the state-based protections in California (Cal. Civ. Code § 3344) and New York (N.Y. Civil Rights Law §§ 50-51).
The case of Waits v. Frito-Lay, Inc. (9th Circuit, 1992) established how false endorsement claims can arise when a public figure’s likeness is used without approval.
With this precedent in sight, Balenciaga faces the risk of Right of Publicity lawsuits from celebrities like Tyra Banks and Paris Hilton whose paparazzi images were manipulated to portray them as owners of the Balenciaga Le City Bag, benefitting from their identity as public figures and icons and thereby endorsing an association between them and the brand, which may or may not exist.
It is important to note that misleading endorsements could be deemed illegal under the protection of Article 6 of the Unfair Commercial Practices Directive (2005/29/EC).
A parallel concern surfaced in India, where the Anil Kapoor v. Simply Life India & Ors. (2023) case brought to light the issue of celebrity image manipulation. Delhi High Court granted an omnibus injunction, to effectively restrain the defendants and others from unauthorized commercial use of his persona, including his name, likeness, image, voice and iconic catchphrase “Jhakass”. An omnibus injunction refers to a broad, comprehensive legal order issued by a court that is aimed at preemptively restraining multiple parties (even unidentified ‘potential’ violators) from engaging in the outlined specific unlawful activities.
French privacy laws and image rights take an especially strict stance on this matter. Article 9 of the French Civil Code grants individuals exclusive control over their likeness, ensuring that their image cannot be used commercially without consent. France has a history of penalizing brands for the unauthorized use of celebrity images, reinforcing its strong legal protections in this area.
France’s strict stance on unauthorized commercial use could be best explained by the case of the Rachel Affair of 1858, which established the foundation for the right to one’s image, later evolving into the broader protection of personality rights. Concerning the moral rights and photographer’s authority over alterations, France, with its copyright law (Code de la Propriété Intellectuelle, Article L121-1), offers photographers the right to object to the modifications made to their original work, which distort it.
In the UK, moral rights have been recognized under Section 80 of the CDPA 1988, allowing photographers to prevent derogatory modifications of their work. If it is concluded that Balenciaga’s edits misrepresented the photographer’s creative intent, they could face challenges to the alterations so made.
Balenciaga’s Marketing Campaign: Consumer Protection Concerns
The final wing explored is in relevance to misleading advertising and consumer protection concerns. The Federal Trade Commission Act, which prohibits false advertising, could hold Balenciaga liable if it is found to have deceived consumers into believing that celebrities purchased and endorsed the Le City bag.
Under Directive 2005/29/EC of the European Union’s Unfair Commercial Practices, if the advertising misled consumers into believing that Paris Hilton or Tyra Banks originally carried the bag, Balenciaga could face fines for misleading commercial practices.
For Australia, the Competition and Consumer Act, 2010 (Schedule 2: Australian Consumer Law - ACL) prohibits misleading advertising. If Balenciaga’s campaign is deemed to have falsely suggested historical celebrity endorsement, the brand could face enforcement actions by the ACCC (Australian Competition and Consumer Commission).
And with creativity being on the forever rise, the campaigns are bound to only get more aggressive from here on, and that isn't just limited to the brand of Balenciaga and its eccentric taste; with every marketing campaign thought out and the investments made in its success, what must also be borne in mind is how the campaign gets translated in cultural narratives and IP realms, with multiple ways of expression available; thought has to go into the guarding of the investments of resources and efforts made to ensure that the work so done contributes to the success and doesn't backfire.
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