Girl, So Derivative: on Copyright and Influencing

Fashion influencer Sydney Nicole Gifford has sued creator Alyssa Sheil, alleging that she copied her aesthetic. Gifford and her lawyers argue that the series of near-identical posts featuring the same outfits, venues, Amazon storefront links, and background colors constitute copyright infringement.

Apparently, the two creators met up to discuss potential content collaboration opportunities in December 2022. Shortly thereafter, Sheil blocked Gifford on Instagram and TikTok. Moated and barricaded in the proverbial social media castle, Sheil then began her plagiarization campaign; seemingly emulating Gifford’s grid post for post. Gifford is suing for damages for “mental anguish” and alleged loss of income.

Sooo, what does this mean for the industry and the legal protection of online content? Ideally, we could set a legal precedent that would protect the innocent (The Copied) and hold grifters (The Copiers) accountable—but it rarely works that way. Any crackdowns on intellectual property and creative copyright can cut both ways and just as easily limit expression. It’s certainly not the first time an influencer has accused another of stealing their content, even though anyone who looks with their own two eyes at the side-by-side of Sydney Nicole Gifford and Alyssa Sheil’s IG grid can see that the similarities seem more than coincidental, proving it to be actual copyright infringement in the court of law is a different story. I recruited Fohr’s General Counsel (our big dog lawyer), Dave Ugelow (say hi, Dave!), to explain it to me like I’m six. Unfortunately he explained it to me more like I was 16, but I (hopefully) figured it out.

Basically—it’s pretty unlikely that this case goes anywhere. Intellectual property and copyright laws have a long way to go to catch up with the speed of tech and social media. Gifford’s lawyers are suing on the basis of copyright infringement and “trade dress” infringement which is a principle in trademark law that refers to the “unique physical elements'' of things—like packaging, material similarities, etc.; the “look and feel” of a product, in other words.  It’s weird to claim trade dress infringement when these are social media posts, not physical products. In order to sue for trade dress infringement, in addition to filing a registration, you typically need to show that your trade dress is “inherently distinctive,” i.e. a unique identifier of your product.

As for copyright, things like “aesthetic,” background colors, and outfits are usually not protectable because they’re not creative enough or because they’re considered utilitarian and impossible to separate from the creative elements (although the creative elements can be copyrightable in certain cases). There is also the concept of  “scènes à faire” (French for "scenes to be made" or "scenes that must be done"). Straight from Wikipedia: “a scène à faire is a scene in a book or film which is almost obligatory for a book or film in that genre—in the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.” In other words: if we both made cowboy movies and you sued me for ‘copying’ the cowboy character in your movie because I had also included a cowboy character with cowboy boots, a cowboy hat, and a cowboy belt,  you would likely be unsuccessful in your lawsuit. If someone were to be the founder of the neutral color palette, skinny-Stanley-cup-Skims aesthetic it probably would not be Sydney Nicole Gifford anyway.

I asked Dave if anything on social media is protectable—and he said: Yes, tons of stuff! Anything fixed in a tangible medium by the author. That’s legalese for physical creations; like photos, videos, written or recorded music, sculptures, etc. Sure, someone could conceivably copy everything you do frame for frame, but they can’t use your actual photos or videos without your permission. The reason for that is not because they exist on your account first, but because you took the photos/filmed the videos. A tripod could be fine, but if your bestie took the photo for you, it’s technically not your copyright…it’s theirs. Yes, even if it’s on your grid and not theirs.

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Dave leaves us with this: the purpose of intellectual property law (IP) in the US is to promote the innovation and proliferation of the arts and useful sciences. If we want to incentivize the creation of new works, we need to be careful not to over-legislate. Even if it would be helpful for some to come up with a way to better protect creators and their content in these cases, social media and the creator economy are so vast, abstract, slippery, and ever-changing that it’s extremely hard to make hard and fast rules that don’t end up stifling creativity. If you’re worried that your content is a little too similar to someone else’s, don’t panic—but maybe diversify your inspiration. For now, the only justice we have is street justice. Reputation is truly everything for creators, and no one wants to be known as the Girl, so derivative remix of someone else’s single.