A recent case of two dueling influencers highlights an industry that values “vibes” and “aesthetics” – but can a vibe or specific aesthetic be protected under copyright law?
The case of Sydney Nicole Gifford vs. Alyssa Sheil involves a dispute between two social media influencers who both promote Amazon products. Gifford alleges that Sheil copied Gifford's posts on various social media platforms including Instagram and TikTok. Gifford claims that Sheil replicated her “neutral, beige, and cream aesthetic” across these platforms referred to as “Sad Beige”. This so called aesthetic, according to Gifford, represents a significant part of Gifford's brand identity and has led to this legal battle over the originality and ownership of online content
Gifford's causes of action include copyright infringement, vicarious copyright infringement, trade dress infringement, misappropriation of her likeness, tortious interference, unfair trade practices and competition, unjust enrichment, and violations of the Digital Millennium Copyright Act (DMCA). Sheil argues, in her motion to dismiss six of the eight causes of action, that Gifford has not sufficiently alleged that Sheil received any benefit from Gifford by fraud, duress, or undue advantage, which is required under Texas law (where the case was filed) to state a claim for unjust enrichment. The court's ruling on the motion to dismiss was mixed – granting in part and denying in part.
Whether or not vibes and aesthetics (not sure how much “Sad Beige” the world needs) will become protected under any laws whatsoever, is still TBD. What is more likely to happen is that this case will have implications for social media influencers, particularly in terms of their legal responsibilities and potential liabilities.
The case underscores the broader legal landscape for content creators, as defined under various statutes. For example, if Gifford wins, it could set a legal precedent for how copyright protections apply to social media aesthetics and content. Influencers will need to vet the originality of their content and be cautious about how they create and share content. It's all too easy to inadvertently infringe on others' intellectual property.
As an influencer, the most effective way to protect yourself against this kind of risk is to familiarize yourself with both copyright and trademark laws, ensure your content is original, and use proper FTC disclaimers and disclosures. Brands can work with influencers to achieve these goals with strong influencer agreements and clear guidelines on legal and other compliance responsibilities. It's always best practice, whether you're a brand or an influencer, to consult with an attorney who specializes in this area.
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