After a joint photo shoot last year, influencer Sydney Nicole Gifford says fellow Texan and creator Alyssa Sheil blocked her on
Gifford and her lawyer sent cease and desist letters insisting Sheil stop the mimicry and successfully petitioned social platforms to remove allegedly infringing posts. But after Sheil denied the allegations and kept posting, Gifford filed a first-of-its kind federal lawsuit accusing Sheil of copyright and trade dress infringement for ripping off her style and copying her content.
Most of Gifford’s claims are shaky, according to multiple intellectual property lawyers who reviewed the complaint. But the suit between two creators, each with hundreds of thousands of followers, raises novel questions about the application of copyright and trade dress laws to social media aesthetics, and could lead to a deluge of similar lawsuits from influencers if the court recognizes Gifford’s asserted trade dress as protectable.
Though it would be easy to discount the claims as “silly Instagram stuff,” there are important premises since social media is central to commerce nowadays, said Pryor Cashman LLP partner James Sammataro. A ruling in Gifford’s favor could set troubling precedent enabling influencers to wield IP rights to control certain markets on social media platforms by owning color schemes or types of photos, he said.
“I certainly don’t think you can look at the two pictures and go, ‘Oh my God, they’re so overlapping and so similar that I couldn’t figure out who’s who,’” Sammataro said. “You could also say the defendant was certainly inspired to copy the overall look and feel. But look and feel doesn’t get you there as a claim.”
Danielle Garno, a partner at Holland & Knight, said she can see similarities between the two influencers’ posts, but that it’s difficult to argue Gifford’s described trade dress is distinctive enough to be protectable “in a sea of influencers that like trends and have the same sort of aesthetic and vibe.”
Gifford Case
Gifford operates social media accounts under the @sydneynicolegiff username and has more than 500,000 followers on TikTok, 230,000 on Instagram, and 83,000 subscribers on YouTube. Sheil’s following is smaller, with about 270,000 TikTok followers, 108,000 on Instagram, and just over 300 YouTube subscribers.
Gifford sued Sheil in April in the US District Court for the Western District of Texas, including claims of copyright infringement of her photos and videos, trade dress infringement of her monochrome, minimal style, and misappropriation of her likeness. She’s become well known for promoting household goods, apparel, and accessories because she spends upwards of 10 hours a day researching products that fit her “brand identity” and editing content, according to the complaint.
Sheil allegedly made at least 20 Instagram posts, 19 TikTok posts, and 12 Amazon storefront posts that “directly replicate the products, poses, and/or styling” of Gifford, causing her to lose followers, user engagement, and sales commission. Gifford also accused Sheil of going as far as getting a tattoo “nearly identical” to hers and copying her haircut.
Sheil moved to dismiss six of the eight claims in June, but hasn’t tried to throw out the copyright infringement and trade dress claims since they “at least pass pleading muster,” according to her partial motion to dismiss.
“When a store asks multiple influencers to promote it, it’s not surprising that some posts may look the same,” Sheil’s attorney, Ahmad, Zavitsanos & Mensing partner Jason McManis, said in an interview. “That doesn’t make it infringement or misappropriation.”
Gifford’s counsel, The Kumar Law Firm PLLC, didn’t respond to a request for comment.
Trade Dress vs. “Vibe”
Non-functional aspects of a product’s look and feel that have acquired a “secondary meaning” indicating to consumers who made it qualify as trade dress. In 2000, the Supreme Court held a mark has developed secondary meaning when, “in the minds of the public,” its “primary significance” “is to identify the product’s source rather than the product itself.”
Gifford’s complaint defines her trade dress as the “promotion of products only falling within the monochrome cream, grey, and neutral-beige color scheme; styling of products in modern, minimal backdrops; creation of content featuring Sydney herself; and Sydney’s distinct relatable way of speaking to followers.”
Trade dress lawsuits often focus on tangible products like sneakers, bourbon bottles, and winter coats. Gifford’s complaint argues courts have also extended protection to the overall “motif” of a restaurant, layout and appearance of a mail-order catalog, and the sight and feel of a website.
But Gifford’s trade dress, as defined, likely doesn’t qualify for protection because it’s so amorphous and broad, Garno said.
Sammataro said Gifford has a keen eye and style, but that he doubts the validity of her trade dress.
“It’s almost like saying because I have this well-known color scheme, which I didn’t create any of these colors, I’m the only person in the world who can use them,” he said. “Seems like a bridge too far.”
An element of the asserted trade dress, Sydney herself, is a “big impediment,” too, said Mark Lerner, a partner at Duane Morris LLP. Because the allegedly infringing content features Sheil and not Gifford, “there’s a key element of your purported trade dress that is missing from all the defendants’ works,” he said.
It’s also difficult to argue confusion between the creators when usernames are prominently displayed, and users type in creators’ handles on social media, said McCarter & English LLP partner Erik Paul Belt.
“It’s not like both of them are found side by side in the same row in the grocery store, like two boxes of cereal that are sitting next to each other and one looks like the other,” Belt said.
Thin Copyright Protection
Gifford has registered her content with the US Copyright Office, including 140 photos and at least 18 videos, according to the complaint. Registrations are a necessary precursor to filing a copyright infringement lawsuit. No registrations are listed under Alyssa Sheil or her LLC, according to a Bloomberg Law analysis.
While the registrations get Gifford’s claims in the door, Sammataro said the images may only have thin copyright protection if they include largely common, unprotectable elements such the color beige, a necklace, a shirt, or things the registrant didn’t create.
It’s clear “that the defendant has completely ripped off the plaintiff here,” said Sullivan & Worcester partner Michael Palmisciano. But “some of these photos are literally photos of the products, and so to say that another photo of the same product is infringing on the original photographer’s rights in that original photograph seems like a stretch because what’s being copied is the idea of that photograph.”
Garno pointed to one example in the complaint, in which Sheil allegedly copied Gifford’s TikTok video of her hands opening a box of shoes on a coffee table.
“Are we really gonna have copyright infringement for like, hands on a table?” she said.
Lerner, Sammataro, and Garno all said Sheil’s photos are likely distinct enough to escape the infringement claims.
“The styling itself is not subject to copyright protection, and the photographs, I think, are too distinct for her to win on that front,” Lerner said.
Similarities are unavoidable when multiple influencers are being paid to promote the same products, presumably with similar instructions, Garno said, noting that Gifford and Sheil’s work opportunities are probably similar since they live in the same area.
“The law is a copycat league,” Belt said. If “you have one successful plaintiff who recovers $2 million, you’re going to see other people start to bring similar claims.”
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