Influencers are important because of the dynamic nature of social media. They come up with characters and content to hawk products and influence huge followings. In this burgeoning industry, it is difficult to separate inspiration, imitation, and intellectual property infringement. The “clean girl aesthetic” has raised various contentions about copyright, likeness misappropriations, and originality, repercussion of the highly competitive digital world as aptly represented in the recent case between Sydney Nicole Gifford and Alyssa Sheil, two influencers famous for their minimalist aesthetic, wherein Sydney has surprisingly accused Alyssa who is having half her followers.
Gifford claims Sheil has used her images, videos, positions, and tattoos to build a nearly identical online presence. Gifford’s accusations include copyright infringement, trade dress infringement, misappropriation of likeness, and unfair competition.
Gifford argues that Sheil has not only photocopied her pictures and videos but has also her looks, poses, and even tattoos to generate a near identical online personality. Gifford’s causes of action are copyright infringement, trade dress infringement, misappropriation of likeness, and unfair competition. She has prepared over 60 examples of identical postings and asserts that Sheil’s conduct has caused consumer confusion and injured her commercial opportunities.
Sheil denies these allegations and says that her content is self-made and inspired by wider trends in the influencer space. She also argues that the “clean girl” aesthetic is not specific to Gifford but a widespread cultural phenomenon.
At the centre of this dispute lies one key question: can someone make a copyright claim over some sort of aesthetic? Copyright, generally speaking, protects original works of authorship fixed in any tangible medium of expression, which involves photographs, videos, amongst a plethora of other creative works. However, the scope of protection does not extend to abstract ideas, styles, or vibes. The “clean girl” aesthetic, which consists of neutral tones, minimalist backdrops, and curated tranquillity, falls into the category of an idea or style rather than a protectable expression. Courts have time and again denied protection to general themes or stock elements of a genre such as certain poses, lighting or particular settings. This is more commonly referred to as the “scènes à faire doctrine.”
However, Giffords accusation of misappropriation of likeness enriches and makes the case multifaceted. Gifford alleges that Sheil has intentionally copied her hairstyles, makeup, and tattoos to confuse the followers, both current and potential, and has attempted to capitalise on Giffords established brand in bad faith for commercial gains, an act which is prohibited by the doctrine of misappropriation of likeness.
Unlike copyright infringement, which seeks to protect creative works, misappropriation of likeness centres on personal identity. Whilst courts have held cases where one party employs another’s name, image, or persona without consent, imitating a person’s style or aesthetic is an altogether different challenge. Sheil may argue and take the defence that her alleged emulation of Gifford was purely coincidental and without prejudice and simply a reflection of the wider trends of the industry.
It elucidates the converging and unifying trends within the influencer industry wherein many influencers, Gifford and Sheil included, work where success is at the mercy of aesthetic cohesion and conformity to trends. Algorithms value conformity, promoting aesthetics familiar to audiences and engaging to them.
Brands further feed into this dynamic by offering influencers lists of carefully selected products and styling tips. What follows is a kind of feedback loop where numerous influencers unintentionally create content that is similar.
The focus of the case is the beige-on-beige style, brought about by systemic factors in the influencer economy, not a personal choice. In this context, Gifford’s claims become complicated. Even if her posts do bear Sheil’s likeness, that may be due to shared industry rules and brand mandates.
The implications for the influencer industry of this case are huge. By ruling in favour of Gifford, the court shows that it is in favour of stricter intellectual property rights, which may lead to a new era of very thoughtful and cautious content creators who are very particular about the kind of content they create and brands which do not promote amplification of trends.
On the other hand, a ruling in favour of Sheil will only solidify that those popular aesthetic features are elements of the public domain to encourage more influencer creativeness and competition. In addition, it can also lay under emphasis how such styles or aesthetics, because they involve creativity, are necessarily collaborative in nature.
The case serves the important purpose of reminding the content creators to be unique and to strive to find their own voice and identity, underscoring the important values of originality and documentation. The case also serves as cautioning incident promoting influencers to maintain detailed records of their creative endeavours to become immune to potential legal hurdles. The case brings the point home for brands, where clarity in influencer partnerships is needed. Content ownership should be defined along with potential intellectual property issues that may arise.
Finally, the legal community might need to come up with new frameworks for this digital creator economy that would have otherwise been unmanageable with the intellectual property Laws. The existing intellectual property laws were not made with social media in mind and hence force a square peg into a round hole.
Authors: Seema Meena, Manasvi Shah & Misha Bhanushali