Can You Copyright a Vibe?
Days earlier, Gifford, a 24-year-old lifestyle influencer, had shared a photo with her thousands of followers that was virtually identical. The woman in this new photo was a fellow influencer, Alyssa Sheil, with whom she had gone shopping and done a photo shoot months earlier.
NEW DELHI: The oversize beige cable-knit sweater. The center-parted hair. The right knee pointed out, creating a curve at her left hip. Practically every detail in the photo — right down to the matching short set — looked familiar to Sydney Gifford. So did the woman posed in front of the nondescript white wall.
Days earlier, Gifford, a 24-year-old lifestyle influencer, had shared a photo with her thousands of followers that was virtually identical. The woman in this new photo was a fellow influencer, Alyssa Sheil, with whom she had gone shopping and done a photo shoot months earlier. At the time, she thought their interactions had been merely awkward. But as she scrolled through Sheil’s photos on Instagram for the first time in nearly a year, she said, Gifford suspected those meetings had been some kind of aesthetic espionage.
Gifford claims that Sheil, 21, not only started to mimic her online persona but also appropriated her entire look. And now she is suing. Gifford had copyrighted several of her social media posts in January, after noticing the similarity between Sheil’s posts and her own. Several photos were submitted as evidence in the lawsuit Gifford filed this year in a federal court in Texas accusing Sheil of copyright infringement. But in the carefully curated world of social media, Gifford has leveled a perhaps more severe charge against her: stealing her vibe.
“This isn’t a coincidence,” Gifford, who has about 300,000 followers on Instagram and more than 500,000 on TikTok, recalled thinking. “Something is definitely happening here.” What might appear to be a superficial spat over sweaters and hairstyles could actually be a legal fight that gets at the heart of social media influence. The very nature of successful trendsetting requires some degree of replication. As much as platforms like TikTok and Instagram may seem like free-for-alls, lifestyle influencers exist in an ecosystem that prizes homogeneity — one of the surer ways to appease the algorithms that are the ultimate arbiters of their success online.
As the creator economy booms, teasing the possibility of a lucrative livelihood, Gifford’s case seeks to clarify the line where imitation may turn from flattery into forgery. In several interviews beginning in August, experts said influencers have to navigate a blurry landscape in which assigning credit to who created what can be daunting or, at times, impossible.
“There really is a sense that you’re both a creator and a borrower,” said Jeanne Fromer, a professor of intellectual property law at New York University. “Fashion is built on that. All the creative industries — painting, music, movies — they’re all built on borrowing in certain ways from the past and also ideally trying to bring your own spin to something. I don’t know that anyone wants to go too far as a result.” Sheil said that Gifford’s claims about her posts were unfounded and that she found them deeply upsetting, as an influencer in her own right. “This is how I make my living and not only that, this is my personal brand,” Sheil said in an interview. “I kind of feel like I need to defend myself.”
Fromer described the lawsuit as one of the first of its kind, in which one social media user is suing another — rather than the tech company behind the platform. Despite seeming outlandish, this “kitchen sink intellectual property complaint” could hold up in court, she said, adding that the most substantial claim was copyright infringement.
Depending on what comes of the lawsuit, it could set an important precedent for other influencers and how they present themselves online. For Gifford, the lawsuit isn’t a matter of personal pride: It’s about protecting her business.
Gifford and Sheil both create social media content meant to induce their followers to buy items — tumblers, coffee tables, pajama sets — from their Amazon “storefronts.” This is how both women make their living, they said, and it is what Gifford is claiming in her lawsuit that Sheil infringed on by copying her posts and aesthetic.
“There were multiple people, some followers, some close friends of mine, that her content had popped up on their ‘For You’ page and they thought it was mine, genuinely,” Gifford said during a video interview from Minnesota. “They obviously looked at the name on the account and were confused,” Gifford said of her followers, who she said alerted her to the similarities. “It was very emotional to see that.” This confusion by her followers is a focus of Gifford’s suit. She also said that she had noticed a dip in the sales of items she posted about when Sheil made a post similar to hers, citing information from Amazon.
In the lawsuit, Gifford identified a list of items that she claims Sheil copied from her posts and sold on her Amazon storefront — items, she said, that she spends considerable amounts of time curating.
Over the summer, lawyers for Sheil filed a motion to dismiss most of the charges presented in the complaint. Decrying Gifford’s “‘throw everything at the wall and see what sticks’ approach,” Sheil’s lawyers suggested that “the overarching theme of Gifford’s gripe is that she believes Sheil’s posts and overall aesthetics are ‘too similar’ to Gifford’s.”
But that, they maintain, is an unenforceable claim under the Digital Millennium Copyright Act, which comes into effect only when an identical work is altered or reproduced without the appropriate copyright information.
“Because the complaint only alleges the creation of similar images — not the reproduction of identical ones,” Sheil’s lawyers contended, “Gifford’s DMCA claim fails as a matter of law.”
Last month, a magistrate judge recommended that Sheil’s motion to dismiss be granted in part and denied in part. Her lawyers said last month that they were weighing how they want to proceed.
