A recent lawsuit in Texas highlights the challenges social media influencers face in protecting their intellectual property. Sydney Nicole Gifford, a well-known influencer, claims that Alyssa Sheil copied her “vibe,” – specifically her “clean girl” aesthetic characterized by neutral, beige, and cream color schemes, minimalist styling, and specific poses and outfits. Gifford argues that these elements are distinctive to her brand and alleges that Sheil’s imitation has caused confusion among followers. Gifford believes that Sheil infringed upon her rights in her intellectual property by mimicking her posts, products, style, and voice. Gifford alleges that Sheil’s actions have caused her significant economic damages and loss of business opportunities. Sheil denies the allegations, arguing that she follows common trends in the influencer industry and that her content is independently created.
The Complaint and Claims
In April 2024, Gifford filed a lawsuit against Sheil, asserting eight claims including:
- Copyright infringement.
- Vicarious copyright infringement.
- Digital Millennium Copyright Act (DMCA)
- Trade dress infringement.
- Misappropriation of likeness.
- Tortious interference with business relations.
- Unfair trade practices, unfair competition.
- Unjust enrichment.
Gifford provided over 60 examples of similar posts, including side-by-side comparisons of Instagram and TikTok content, where Sheil allegedly mimicked Gifford’s “clean girl” aesthetic. This aesthetic is characterized by neutral hues, minimalist backdrops, and specific fashion choices such as beige skirts and flower accessories. Gifford alleged that Sheil copied her Amazon Storefront page and apparel designs, including similar product listings and layout. She also claimed that Sheil’s actions led to a decrease in her followers and sales commissions. Gifford seeks damages, attorneys’ fees, and injunctive relief to prevent further infringement.
The Motion to Dismiss and Replies
In June 2024, Sheil filed a partial motion to dismiss six of the claims, arguing that some were invalid and others were preempted by federal law. Specifically, Sheil sought to dismiss the claims for vicarious copyright infringement, DMCA violation, misappropriation of likeness, tortious interference with business relations, unfair competition, and unjust enrichment. Sheil argued that Gifford’s posts followed popular trends in the influencer industry, including the ‘clean girl’ aesthetic popularized by celebrities like Hailey Bieber. Sheil provided evidence showing that many influencers adopt similar styles and trends, arguing that her content was independently created and not a direct copy of Gifford’s work.
Sheil also contended that Gifford failed to state a claim for vicarious copyright infringement because she did not allege any act of infringement by a third party or that Sheil had any right or ability to control the infringing conduct of third-party viewers and followers of her social media pages. Regarding the DMCA claim, Sheil argued that Gifford did not contend that Sheil reproduced identical images or removed Gifford’s Copyright Management Information (CMI) from Gifford’s images.
Gifford opposed the motion, insisting that her brand was unique and that Sheil intentionally copied her content to gain an unfair advantage. Gifford argued that Sheil’s posts did not need to be identical to hers to violate the DMCA. She maintained that her claim was adequately pleaded because she alleged that Sheil copied her posts without including her username, which qualifies as CMI under the DMCA. In her reply, Sheil accused Gifford of engaging in bad-faith litigation and attempting to stifle competition.
The Court’s Ruling on the Motion to Dismiss
In November 2024, a Magistrate Judge issued a report and recommendation on Sheil’s partial motion to dismiss. The Judge recommended dismissing some of Gifford’s claims while allowing others to proceed. Specifically, the Judge upheld Gifford’s claims for copyright infringement, DMCA violation, and misappropriation of likeness. However, the Judge recommended dismissing the claims for vicarious copyright infringement, tortious interference with business relations, unfair competition, and unjust enrichment, noting that Gifford failed to allege any third party infringement or demonstrate that Sheil had the ability to control such conduct—both required for vicarious copyright infringement claims.
Regarding the DMCA claim, the Judge found that Gifford had adequately pleaded her case, alleging that Sheil copied her posts without including her username, which qualifies as CMI under the DMCA. The Judge also allowed Gifford the opportunity to amend her trade dress infringement claim to address deficiencies identified in the complaint. The Judge noted that while Gifford’s ‘clean girl’ aesthetic could potentially be distinctive, the initial complaint lacked specific details on how this aesthetic was uniquely associated with Gifford’s brand.
Implications for Influencers and Ecommerce Companies
This case underscores the complexities of protecting intellectual property in the influencer industry, which is also highly relevant for ecommerce companies that rely on influencers for advertising. It raises important questions about the originality of popular aesthetics, such as the ‘clean girl’ trend, which features neutral colors, minimalist styling, and specific fashion choices. The case explores the extent to which influencers can protect their brand identity and content when these elements are widely adopted across the industry.
The outcome of this case will likely have significant implications for how influencers strategize and develop their brands in addition to impacting how ecommerce companies manage relationships with influencers and protect their advertising content online. The court’s ruling highlights the importance of providing specific details and evidence to support claims of intellectual property infringement.
Moving forward, influencers and brands may need to be more diligent in documenting and proving the distinctiveness of their brand elements to successfully protect their intellectual property rights. Additionally, the case may prompt brands and ecommerce companies to be more cautious in their collaborations with influencers, ensuring that the content created is original and does not infringe on the intellectual property of others. This vigilance can help avoid potential legal disputes and maintain the integrity of their advertising strategies.
For additional information on establishing a brand identity, steps to take to protect your brand identity, or if you are seeking to stop others from copying your brand, contact Antonio F. Dempsey (AFD@kjk.com; 216.736.7224) or Kyle D. Stroup (KDS@kjk.com; 216.736.7231) or any attorney within KJK’s eCommerce practice group.