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Oliviero Toscani and Benetton certainly grabbed the public’s attention with their latest ad campaign, “We, On Death Row.” Masterminded by Toscani, the campaign zeroes in on the issue of capital punishment with intimate photographs of 26 convicted killers who await their execution. Accompanied by text that never reveals the nature of the inmates’ crimes or anything about their victims, the $20 million campaign, which has just finished in the United States, has stirred up a critical and legal tempest.
Sears, Roebuck & Co., Benetton’s longtime client, has stopped selling its products. The California Assembly has called for a boycott against the Treviso, Italy, company. Victims’ rights groups, such as Parents of Murdered Children (POMC), are appalled that the murderers — one of whom is John Lotter, whose killing of Teena Brandon was portrayed in “Boys Don’t Cry” — are remembered in the catalog, rather than the victims.
“They make victims out of the murderers,” says Greater Portland, Ore., member Mary Elledge. Her POMC chapter will run a series of Benetton-style billboard ads that will feature the faces of the victims. Benetton’s name will appear, but it will have a stroke through it.
The company may be in legal hot water as well. Two months ago, Missouri Attorney General Jay Nixon, a pro-death-penalty Democrat who is up for reelection, slapped a civil suit against Benetton for trespassing and misrepresentation. At the time, it seemed imminent that other states that gave Toscani’s team access to their death-row inmates for the campaign would join Missouri’s fight: The New York Post reported that Nebraska, Kentucky, North Carolina and Oregon were threatening to launch civil suits on similar grounds.
All of these states granted Toscani access to their prisons on the basis that his team was there to produce a photo essay — only to discover later that the death-row shots appeared in a Benetton’s advertising campaign that began last January, and that two prisoners were paid as models for appearing in the ads.
“From my point of view, the Benetton people were not up front about what they were doing in the prisons,” said Nebraska Department of Corrections spokesman Win Barber. A spokesperson for the Missouri attorney general accused the firm of misrepresentation in the way it gained access to the prisons.
Benetton is unfazed by the backlash. “When the Missouri guy tries to say that he didn’t know it was Benetton, it’s either a baldfaced lie or they’ve got to be the dumbest people put on the planet,” says Gonzaga School of Law professor Speedy Rice, who was the managing editor of the catalog. He also served as Benetton’s legal advisor on the campaign.
Toscani is equally unapologetic. “I’m not a judge. I’m not a social worker,” he said. “This campaign is not about victims. It is about the death penalty. The death penalty is unreligious. The 10 Commandments say ‘Thou shalt not kill.’ It is against the law. “
Benetton and Toscani were already notorious for their unorthodox ad campaigns — the mixed-race models, multicolored condoms, newborn babies, dying AIDS patients — but the death-row ads moved the firm to a new level of controversy. They show convicted killers in their prison garb, glaring at the camera. Above each of the prisoner’s heads is the phrase, “Sentenced to Death,” along with the prisoner’s name, birthday, crime and the method of execution that the courts have chosen for them.
While some accuse Benetton of commercial exploitation, these images, which appeared in such magazines as Vanity Fair and Rolling Stone, hardly seem designed to win the clothing maker new loyalists in a country that overwhelmingly supports the death penalty. In real estate terms, the ads don’t seem a clever use of expensive, downtown space, although Toscani insists that they’ve won the firm new business to make up for the loss of Sears and other clients offended by the campaign.
The Benetton-ad drama began in 1998, when Toscani approached Rice, a death-penalty opponent, to enlist his help in producing some sort of Benetton anti-death-penalty project. They met through Hands off Cain, an Italian movement to abolish capital punishment. In the past, Rice has worked to persuade the European community to boycott states that support the death penalty.
Last winter, on Toscani’s behalf, Rice wrote to Department of Corrections officials across the country to gain access to the death-row inmates. Along with what was basically a form letter sent to all the states involved, Rice presented the credentials of Toscani and the essay writer, Newsweek stringer and National Public Radio producer Ken Shulman. The pair, he explained, planned to produce a photo essay, or catalog, on the prisoners that would be published by Benetton.
“The point is not to portray the prison or conditions,” Rice wrote, “only the inmates themselves.” Rice also included previous catalogs sponsored by Benetton to give an idea of what the company’s brand of photojournalism was about. The catalogs, such as the “Enemies” series, a controversial take on Palestinian and Israeli relations, have the “United Colors of Benetton” logo on them.
Rice’s letter explained that Benetton would produce a “photo essay” and print 6 million copies in 13 languages, most of them distributed in Europe and Asia, with only limited distribution in the U.S. “No profits are generated from the publication of this photo essay,” he insisted. Early on the second page, Rice mentions that Benetton “is the sponsor,” and adds, “Benetton’s only condition is that the inmates be photographed in their normal prison clothes and not clothing which would promote another company, such as a Gap shirt.”
The commercial undertone of his letters, along with the previous catalogs emblazoned with the United Colors of Benetton logos, must have disturbed some states, because many gave Rice’s team the brush-off. “Most of the states turned us down because of the Benetton connection: Washington, Idaho, California, Nevada, Arizona, New Mexico,” Rice said, and he went on to name others. “We made two trips to Louisiana, and each time the warden said: ‘I just don’t like this Benetton crap. Just go away,’” Rice remembered.
At first Missouri, too, rejected Rice’s request. “We were told no. Unequivocally no. We called Missouri back in late August, trying to reopen the door,” Rice said. “We were told not only no, but hell no.” [Missouri attorney general spokesman Scott Holste denied that the team made two tries.] But an abolitionist ally in Missouri eventually prevailed on prison officials and Rice’s team — Toscani, Shulman, Rice’s assistant Julie Wasson and others — gained access to the state’s prisons in October.
In January, a little more than two months after Toscani’s team made their last prison visits, the “We, On Death Row” campaign was in full swing. Talk magazine featured the photo essay as an insert. But the appearance of the advertisements on billboards and inside magazines sparked a legal brushfire. It wasn’t the catalog that the various attorneys general objected to — in their view, they had already consented to that. But several state officials began to complain that Benetton had no right to use the death-row photographs for an ad campaign.
“I have reason to believe that you misrepresented the nature of your intentions,” North Carolina’s attorney general, Michael F. Easley, wrote in a letter of protest to Benetton. “Your stated goals in this so-called ‘public information campaign’ appear inconsistent with the terms under which you were granted access and with the statements made by your agents to obtain it.”
“I read about the ads in the local paper,” Nebraska’s Win Barber recalled. “The materials we received said nothing about advertising. They said that Benetton was funding them, but not that [Benetton] would use the materials.”
Some journalists, including Slate’s Tim Noah, objected to the way the Benetton team used Shulman’s Newsweek affiliation to give the corporate project the look of journalism. Rice’s original letter included Shulman’s risumi listing his Newsweek experience, which is unobjectionable in itself. But later, once the team was in the Missouri prison, Shulman signed a consent form that showed Newsweek as the sponsoring organization/agency. Newsweek isn’t happy. “Our name was misrepresented,” Newsweek spokesman Roy Brunett said. Shulman, citing Missouri’s lawsuit, refused to comment.
Rice insists prison guards filled out the consent forms and that Shulman merely signed them. He also points out that the state had already given the team permission to visit when the consent forms were signed, so the Newsweek credential isn’t what got them into the prison. “It has nothing to do with access,” he insisted.
“The decision [to grant the team access] had been made prior to that point,” conceded Holste. “But the misrepresentation on the form is only a piece of it. We don’t believe that the information we got from professor Rice in trying to gain access to the inmates in the maximum security was the appropriate level of information.” If the state had known Benetton’s true intentions, he says, “then the Department of Corrections would have denied that request for access.”
But at least one state official, Larry Todd, a spokesman for the Texas Department of Criminal Justice, rejects the claim that Rice and company had acted in a deceitful way. “They were right up front with us: They told us they were doing an advertising catalog or calendar,” he said. “Best I recall, they were very candid.” Texas declined Benetton’s request for a death-row visit.
Still, it’s clear that Benetton’s plans for the death-row photos changed at some point. Rice claims that around a month after the team wrapped up its prison shoots, Toscani’s assistant at Fabrica — the creative think tank with which Toscani and Benetton are affiliated — sent notice that Toscani wanted to commit most of his budget to posters, billboards and magazine ads for Benetton — what Rice and Benetton people refer to as an “expanded campaign,” not a completely new one.
“We did 26 inmates, but he only wanted to feature seven of them [in the ads],” Rice said. “They wanted additional permission from these seven inmates.”
It was at that point that Benetton got itself into more hot water. Because it was clearly using the prisoners in advertising, however unorthodox, it had to get permission and at least offer to compensate them.
To cover the legal bases, Rice contacted the lawyers of the seven convicts in early December and had them sign waivers to allow use of the image. He also offered each prisoner a $1,000 fee — but urged the men to turn it down, because of some states’ laws preventing prisoners from profiting from their crimes. “Our recommendation was ‘You should turn this down. It’s not a good idea.’”
Only Missouri’s Jerome Mallet, sentenced to death for the murder of a state Highway Patrol officer, and Nebraska’s Jeremy Sheets, on death row for the racially motivated rape and killing of a female teenager in 1992, took the money — but the state intervened and donated it to a victims’ compensation fund. Missouri has not been able to track down what became of the payment to Mallet.
In the end, the legal question may come down to whether Benetton was obliged to let prison officials know its plans had changed and that it was using the photos in its “expanded campaign.” Rice sees no legal need for the heads-up. “The only issue is: Should Benetton or us have contacted the prison to get permission to use an image already in the legal possession of Toscani? I still don’t think on First Amendment grounds you have to do that.”
Rice’s lawyer, Les Weatherhead of Spokane, Wash., says that the team wasn’t legally bound to tell the Missouri authorities about the change in plans. “The state of Missouri never asked Benetton to commit to any binding issues on the future use of the photographs. If there were any binding issues, I’d be concerned.” In other words, the team had no legal reason to tell the state about any future developments, and so they didn’t.
“Professor Rice’s comments don’t really address our allegations of misrepresentation to the state,” said Holste in response. “The state has a very serious obligation and responsibility to protect the integrity and security of the facilities such as the maximum security prison,” he added.
Missouri vows to press on with its suit, but so far other states haven’t joined it. Nebraska has officially backed off its threats of a civil suit. “Upon review, the state has decided that it would not be in the best interest of Nebraska,” said attorney general spokeswoman Jessica Flanagan. North Carolina and Kentucky haven’t advanced their grievances, nor has Oregon, which, despite the New York Post’s claim, said it never had considered a suit.
Was it worth the trouble for Benetton to provoke controversy on a delicate issue during an election year? “They’ve lost millions,” Rice said, but company spokesman Mark Major was quick to correct him. “Spent millions, maybe,” he said.
Whatever the case, Benetton isn’t the first group in America to unload a lot of money on a flagging political campaign.
Craig Offman is the New York correspondent for Salon Books.More Craig Offman.
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