Can an influencer sue another for having a similar aesthetic? Scott Hervey and Jessica Marlow dive into a Texas case that could reshape creator marketing on this episode of The Briefing.
Watch this episode on the Weintraub YouTube channel.
Show Notes:
Scott:
Can a natural beige and cream aesthetic be protected? There’s a case pending in Texas, a lawsuit brought by one social media influencer against another social media influencer in which the plaintiff claims that the defendant copied her look. Can you protect a look? I don’t think so.
I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Jessica Marlow. We’re going to discuss the case of Sydney Nicole versus Alyssa Shell and its potential implications on the creator marketing industry on this installment of The Briefing. Welcome back, Jessica. It’s been a while.
Jessica:
Well, thank you for having me. I’m very interested in this case and looking forward to talking it through.
Scott:
Yeah, this one is just right up your alley for sure. Can you give us some background on the case?
Jessica:
Absolutely. This case involves two influencers who both operate in the same niche, promoting Amazon products. Sydney Nicole Gifford, the plaintiff, filed a lawsuit against Alyssa Shell and her company, alleging that Shell copied Gifford’s entire online persona, including her Instagram and TikTok posts, Amazon storefront layout, and even the designs of apparel Gifford created through Amazon. Gifford claimed that Shell replicated her esthetic, described in the lawsuit as a neutral beige and cream brand identity to mislead followers and increase her own earnings from sales commissions.
Scott:
So Gifford’s complaint included a wide range of claims, totaling eight. Copyright infringement, vicarious copyright infringement, trade dress infringement, misappropriation of likeness under Texas law, tortuous interference, unfair trade practices, and unfair competition, unjust enrichment, and violations of the Digital Millennium Copyright Act or DMCA. Shale moved to dismiss the complaint or parts of the complaint, arguing essentially that she has not broken any laws by making social media posts like Gifford’s. In ruling on Shale’s motion to dismiss, the magistrate judge noted that this appears to be the first time a court has looked at whether one influencer can sue another for copyright infringement and other claims based on the similarities in their social media posts promoting the same products.
Jessica:
Of the six claims, the court dismissed three: tortuous interference, unfair competition, and unjust enrichment. Let’s talk about the claims that the court didn’t dismiss. The first is claims for vicarious copyright infringement.
Scott:
And we should be clear, the reason why the court didn’t address the copyright infringement and trade dress infringement claims is because Shell did not move to dismiss those. So to establish vicarious copyright infringement, a Plaintiff Must Plead, Direct Infringement by a third party, the defendant’s right and ability to supervise the infringing conduct, and the defendant’s direct financial interest in the infringing activity. The last element that Shell had a direct financial interest in the infringing activity would easily be established if Gifford could prove the first two elements. That’s what both the court and Shell focused on. As to the first element, Shell argued that Gifford failed to allege any act of infringement by a third party since Gifford accuses both Shell and her entity of direct infringement. Gifford clarified that the vicarious infringement claim was not an attempt to hold Shell liable for the direct infringement committed by Shell’s company and vice versa. Rather, the claim was an attempt to hold both of them liable for the vicarious copyright infringement of Shell ‘s followers.
Jessica:
And the court was satisfied with this allegation.
Scott:
That’s right. The court, or the magistrate judge in our case, determined that Gifford successfully pleaded direct infringement by third parties, the followers, by alleging that these third-party, Shell ‘s followers, accessed, downloaded, interacted with, and/or viewed the allegedly infringing content, which was Shell ‘s posts.
Jessica:
And next, the court addressed the element of a defendant’s right inability to supervise. Shell argued that while she may control her own social media platform, she does not have control over the viewers and followers.
Scott:
In responding to that, the court pointed out that while it does not appear that any The E. Court has addressed whether a social media user has the right and ability to supervise their viewers or followers, other courts have found that the ability to block infringers’ access to a platform to be sufficient to establish the right and ability to supervise. In this case, Gifford alleged that Shell controlled what content was posted and which users could follow Shell’s various social media accounts. The court reasoned that similar to a case where a defendant could block access to an online bulletin board preventing infringement, Shell could police her accounts to control third-party access to allegedly infringing content. In other words, Shell could control which of her followers could access the content that she was posting, which was allegedly infringing Gifford’s copyright.
Jessica:
Interesting. The court determined that construing the facts in the light most favorable to Gifford, as is required when evaluating a motion to dismiss, she sufficiently pleaded Shell’s right inability to control the alleged third-party infringement by exercising control over the allegedly infringing content on her platforms and the third party’s ability to access that content.
Scott:
Yeah. I mean, to me, I think it’s circular. But okay, let’s get on to the next one. The next claim that was not dismissed was for a violation of the copyright management information provisions of the DMCA. Now, to properly state a claim, Gifford had to allege that the copyright management information or CMI, existed in connection with with the copyrighted work, that Shell distributed copies of the copyrighted work, and that Shell knew that the CMI was removed or altered, and that Shell l knew this would lead to infringement.
Jessica:
Giffred alleged that Shell violated the DMCA by intentionally creating posts indistinguishable from Giffred’s post without reference to Giffred’s name or username. With regard to photos, these types of claims are normally brought when a defendant is either displaying or distributing of the plaintiff’s photos without any copyright information that the plaintiff affixed to the original work. Here, the posts Shell had posted were not Gifford’s posts. They were Shell’s own posts.
Scott:
Right. And Shell brought this up. She said that Gifford could not bring a claim of the DMCA where there is no copy and paste of identical images with copyright croppings. However, the magistrate The judge found that courts in this particular circuit have found that the DMCA may properly apply even when the allegedly infringing work is not identical to the original.
Jessica:
The case the magistrate judge sites involved the use of plaintiff’s exact training material while making some changes to colors of graphs and chart sizes. I don’t think that’s really an analogous case here.
Scott:
Yeah, I agree. I don’t think it was an analogous case either. In that case, that specific case, the defendant distributed basically the exact same work, but just made some changes, as you said, to the colors of the graphs and the chart sizes. Now, granted, I haven’t surveyed all of the CMI cases. However, it does seem that this portion of the DMCA is focused on the plaintiff’s actual work, the original copyrighted work. However, the court found that although Shell’s posts were not identical to Gifford’s, they still used Gifford’s copyrighted material in her allegedly infringing post, the esthetic, without including Gifford’s name or username, which constitutes CMI.
Jessica:
So I think there are a few interesting takeaways from the court’s ruling on that specific claim.
Scott:
I agree. I think there’s two takeaway points here. The first is that social media usernames can constitute CMI. And the second, at least with this magistrate, is that a plaintiff can bring a CMI claim where the infringing work is clearly not the plaintiff’s work. I’d be curious to see how other circuits addressed a claim like this.
Jessica:
The last claim that the court allowed to proceed was misappropriation of likeness under Texas law. This statute requires the following elements, that the defendant use a plaintiff’s name or likeness for its value rather than incidentally or for newsworthy purposes, that the plaintiff can be identified from the publication, and lastly, that the defendant games some advantage or benefit from using the plaintiff’s name or likeness.
Scott:
So let’s break down the first two elements since the last one would be easily established under the circumstances if the first two are satisfied. So with regard to the first element, the appropriation of name or likeness for value, Shell argued that Gifford failed to allege that Shell used Gifford’s actual image, name, or voice because it was photos of Shell, not of Gifford. The court found that Gifford satisfied this element by alleging that Shell created a, quote, virtually indistinguishable replica, close quote, of Gifford’s likeness by imitating her outfits, poses, hairstyle, makeup, and voice. This imitation, the court noted, could be seen as appropriating, quote, an aspect of that person’s persona in a manner that symbolizes or identifies the person, close quote.
Jessica:
As for the second element, Shell argued that Gifford’s likeness was not identifiable in her post, which makes sense because the posts were actually images of Shell, not Gifford. However, the court stated that this was a factual issue that could not be resolved at the motion to dismiss stage.
Scott:
Let’s quickly discuss us two of the claims that the court actually dismissed, the unfair competition claim and the unjust enrichment claim. The court dismissed both of these claims because they were preempted by federal copyright law. Both claims were based on Shell’s publishing and promoting infringing works, including product lists similar to compilations of facts or pictorial or graphic works protected under copyright law, and both claims lacked any unique element to distinguish it from claims under federal copyright law.
Jessica:
So the claims that go forward from here are claims for direct copyright infringement and trade dress infringement, since those claims were not the subject of Shell ‘s motion to dismiss. Also going forward are the claims for vicarious copyright infringement, the DMCA claim, and the misappropriation of likeness under Texas law. Yeah.
Scott:
And I will state that I was just reading this morning that she’ll… So this magistrate judge, this is recommendation, I guess, I’m not a litigator, but my understanding of how this works is this magistrate judge makes a recommendation to the district court, and the district court has basically can adopt the magistrate’s opinion or make changes to it, and she’ll file the motion objecting to the magistrate judge’s ruling and basically challenging the, I believe it is the vicarious liability in the DMCA portion of the Magistrate Judges’ opinion. And we’re going to talk about, I think, really what Shell ‘s lawyer should have done in a bit. But here we are with this case. So let’s now talk about what effect this case could actually have on the influence or marketing industry? Because we now have this case that says potentially that an aesthetic is protectable or that one One creator may sue another for violating a look. My understanding is there’s categories of types or looks in the creator marketing space, just like there’s categories of actors, and a casting director who’s casting a movie or a television show might be looking for a particular category or type, role type, when casting for that role, right?
Jessica:
Absolutely. Gifford and Shell have this, quote, Clean Girl look. It’s a fashion and beauty trend characterized by minimalist, effortless, polished look. You’re focusing on neutral colors and classic silhouettes, natural makeup. The person appears well-kept with a focus on dewy skin and slick hair, subtle accessories, essentially aiming for a refined yet casual appearance without looking overly done up. This is a very popular look among the creator marketing community, and Adopters of this look are some big names: Haley Bieber, Bella Hadid, Selena Gomez, Kim Kardashian. There are a lot of women and creators that fit this clean-girl vibe.
Scott:
There are a few ways that creators like Gifford and Shell make money. One is by being directly hired by a brand to promote a product or a service. The other is through affiliate marketing programs or platforms like LTK or Amazon’s Influencer program. Now, if you are a brand that fits into or is demographic, fits into the clean girl esthetic, it would be understandable and probably common practice for that brand to contract with multiple clean girl creators to create posts promoting the brand’s products. And because the look of those posts would be dictated by the brand’s creative brief, It wouldn’t really be unthinkable if each post was somewhat similar. With regard to the Amazon Influencer program, it’s my understanding that Amazon sends out lists of products that creators are encouraged to promote. I think it would be natural for two creators with a similar look to focus on the same products or same type of products that fit that look. Do you agree?
Jessica:
Absolutely. I mean, that’s why that creator was selected to partner with that brand and to create that content because of their esthetic and their take on the product and how they want to feature it.
Scott:
This is why I think this case is problematic. It seems to me that Guilford… No, Guilford, sorry. I think we’ve been mispronouncing her name the entire time. It’s Guilford. My bad. It seems to me that Guilford is trying to prevent Shell from posting content that reflects this clean girl esthetic. The clean girl esthetic, as you pointed out, is an esthetic which is defined in the dictionary as, a particular theory or conception of beauty or art, often emphasizing personal taste. From a practical standpoint, should Guilford have a monopoly on the ability to post content reflecting the clean girl aesthetic?
Jessica:
Absolutely not.
Scott:
I mean, what would happen if she was able to have this monopoly over the clean girl aesthetic? It could grind creator marketing and influencer marketing to a halt.
Jessica:
Yeah, Absolutely. If you’re starting to block out entire categories, vibes, esthetics, creative approaches, I mean, at what point does the whole creator influencer marketing world run into a road trip? Blog.
Scott:
Well, with regard to Guilford’s attempt to try to prevent Shell from posting content that reflects this clean girl aesthetic, copyright law agrees with you. Section 102(b) of the Copyright Act expressly excludes protection for any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied. This section codifies what’s known as the idea-expression dichotomy, and it’s also called the merger doctrine, which means that every idea, theory, and fact in a copyrighted work becomes available for public exploitation or is generally available for public exploitation. From the moment of publication, this strikes a balance in protecting the interest of the copyright clause with first amendment rights by permitting free communication of facts and unprotectible elements while still protecting an author’s means of expressing those facts. I think there’s an argument to be made here that Guilford is basing her claims on an unprotectible idea or concept, that she’s trying to protect the copying of something that isn’t protectable, trying to prevent Shell l from posting content that is Shell ‘s own expression of the clean girl esthetic, which itself is an unprotectible idea.
Jessica:
So Scott, Are you saying that Gifford would not, under any circumstances, be protected against Shell copying her posts?
Scott:
Well, if the idea was simply promoting Amazon products with a neutral beige and cream esthetic, that idea itself would not be protectable. However, if Shell copied specific original elements from Gifford’s post, like unique arrangements of products, particular phrases, or original photography, those elements could potentially be protected by copyright. Now, what I think is that the magistrate judge… First of all, I think that Shell’s lawyer should have moved to dismiss the copyright claim. And then I think that the magistrate judge, maybe on their own, or definitely the district court, should have dug into or should dig into the merger doctrine and separate out the unprotectable elements from the protectable elements and then analyze whether or not the content is substantially similar. This would have had a substantial impact on the court’s analysis, not only of the copyright claim, but also of the DMCA claim and the vicarious infringement claim.
Jessica:
And what about the Trade Dress infringement and misappropriation of likeness claims?
Scott:
So similar to copyright, Trade Dress protection does not extend the general ideas or concepts. So if Shell successfully argued that Guilford’s claimed trade dress, this neutral beige and cream esthetic, was either too broad or too generic to function as a source identifier, the court may have dismissed the a trade dress infringement claim. Now, the court allowed the misappropriation of likeness claimed to proceed, suggesting that imitating someone’s outfit, poses, hairstyles, makeup, and voice could constitute appropriation of their likeness. However, if Shell argued that the plaintiff was merely trying to protect this general style or persona rather than her specific identifiable likeness. And think about it. These were pictures of Shell. These were not pictures of Guilford. So Guilford’s actual likeness, and her obvious her voice wasn’t there, but her actual likeness were not reflected in those images. And I think a court may have viewed those claims differently. We talked a little bit, Jessica, about this case and if Guilford’s copyright and trade-risk claims are allowed to stand how this case could affect the creative marketing industry. But let’s assume even if these claims are dismissed, you still have this deterrent effect of an influencer bringing a lawsuit against another influencer merely because they share a similar esthetic.
Jessica:
I mean, there may be some other detailed elements that were not not visible to us yet or not clear to us yet. But to me, it seemed as if this was broadly based upon this shared vibe and look. How do you think this case Do you think this case may act as a deterrent in the way that other clean girl creators express their look?
I do. I think this is a very challenging case if it does end up standing because every creator certainly has their own vision, their own style, their own tone, their voice, and how they create, produce, and ultimately upload their content. But if there’s a creator who does have this similar vibe or aesthetic, and they inadvertently have a similar style or tone, what are we talking about? Is there liability in that instance? At the very least, is a case going to be brought and these creators are going to be defend themselves over their vibe, over having similar types of content, promoting similar types of products? I think it walks us down the wrong road and could be really dangerous.
Scott:
Yeah. I mean, I think I tend to agree. I think that I hope that the district court, on its own accord, looks at the copyright infringement claims and makes a determination as to what aspects of of Guilford’s claims cover protectable or unprotectible elements and really, really parts what Guilford’s claims. And then I think we’ll be, we’ll have a clearer picture as to what she may or may have not infringed. But I I also think that it’s incumbent on the court to be clear here that an esthetic is not protectable. And to the extent that Guilford’s claims are based solely on this shared esthetic, then I think the court should dismiss the case in its entirety. Maybe the court might consider this to be one of those exceptional cases and allow Shell to recover her attorney’s fees. And that would maybe send a deterrent message to other creators. Don’t bring cases like this where you’re trying to protect an unprotectible esthetic.
Jessica:
I agree. I mean, an esthetic is not protectable under law, despite what we’ve discussed.
Scott:
All right, Jess, thanks for joining me today.
Jessica:
Thank you for having me.
Scott:
So that’s all for today’s episode of The Briefing. Thanks to Jessica for joining me today. Thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.
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