Oversized beige cable-knit sweater. Center parted hair. The right knee bent over his left hip.
Practically every detail in the picture — in a matching short set — looked familiar to Sidney Gifford. Just like that the woman posed in front of a nondescript white wall.
Days ago, Gifford, a 24-year-old lifestyle effectiveShe shared the photo with thousands Followers It was almost the same. The woman in this new photo was a fellow influencer, Alyssa Sheil, who she went shopping with months ago and did a photo shoot with.
At the time, she thought their interaction was just awkward. But as she scrolled through photos of Sheil on Instagram for the first time in nearly a year, she said, Gifford suspected the meetings were some kind of beauty snooping.
Gifford claims that Sheil, 21, not only started imitating her online persona, but her entire look. And now she is suing.
Gifford copyrighted several of Sheil’s social media posts in January after noticing similarities between Sheil’s posts and her own. Many of the photos were submitted as evidence in a lawsuit filed by Gifford in federal court in Texas this year accusing Shiel of copyright infringement. But in the carefully curated world of social media, Giffords has perhaps a more serious charge against her: stealing her vibe.
“It’s not a coincidence,” Gifford, who has nearly 300,000 followers on Instagram and more than 500,000 on TikTok, recalled thinking at the time. “There’s definitely something going on here.”
What may seem like a superficial fight over sweaters and hairstyles may actually be a legal battle that takes place at the heart of social media. effect. The very nature of successful trendsetting requires some degree of replication. While platforms like TikTok and Instagram may seem like a free-for-all, lifestyle influencers exist in an ecosystem that rewards consistency – one of the surest ways to please the algorithms that are the ultimate arbiters of their online success.
As the creator economy grows, teasing the prospect of lucrative livelihoods, Gifford’s case seeks to clarify the line where imitation turns from flattery to forgery.
In several interviews beginning in August, experts said influencers must navigate a murky landscape in which crediting who created what can be daunting and, in some cases, impossible.
“There’s really a sense that you’re both a creator and a borrower,” said Gene Frommer, a professor of intellectual property law at New York University. “Fashion is built on that. All creative industries — painting, music, movies — are all built on borrowing from the past in certain ways and ideally trying to put your own spin on something. I don’t know that anyone wants to go too far as a result.”
Sheil said Gifford’s claims about her posts were unfounded and that she found them deeply troubling, as influencers in their own right.
“This is how I live my life and not only that, it’s my personal brand,” Sheil said in an interview. “I feel the need to protect myself.”
Frommer described the case as the first of its kind, in which a social media user is suing another — rather than the tech company behind the platform. Despite its unfamiliarity, this “kitchen sink intellectual property complaint” could hold up in court, she said, adding that the most important claim was copyright infringement.
Depending on what comes up at issue, it can set an important precedent for other influencers and how they present themselves online.
‘I didn’t feel welcome’
The first time Gifford and Sheil met, at a luxury outdoor mall in Austin, Texas, Sheil felt like a third wheel.
According to Sheil, Gifford sent her a private message on Instagram saying she wanted to hang out with him and another influential friend. The ladies wandered around, read the offers at H&M and Aritzia, had lunch, and went their separate ways.
“I was definitely worried because they were already friends,” Schill said. “I didn’t really know I was walking into something they were already friends with, and it turned out okay.”
Gifford described the get-together as “professional” and said it was mainly about film material and bouncing ideas off each other.
“I don’t really remember who contacted who,” said Gifford, who now lives in Minnesota. “I know we’ve been following each other for a while, so I don’t know who started it.”
The three women met again the next month in a downtown Austin parking garage to take photos together to post on their personal accounts. This time, however, Sheil didn’t feel welcome, she said.
“For the first 45 minutes to an hour when I got to the parking garage, I wasn’t spoken to,” Sheil said. “Sydney also took and posted a photo with a third friend who was there and didn’t tag me.”
When Sheil went home, she stopped Gifford on all the platforms.
“I don’t really see anything wrong with stopping him,” Schill said. “I didn’t feel welcome. I didn’t feel like that was the person to be in a relationship on social media if we didn’t have a good relationship in real life.”
Livelihoods on the line
For Gifford, the issue isn’t a matter of personal pride: it’s about protecting her business.
Both Gifford and Sheil create social media content intended to inspire their followers to buy items — tumblers, coffee tables, pajama sets — from their Amazon “storefronts.” That’s how both women live their lives, they said, and it’s what Gifford is claiming in her lawsuit that Sheil violated by copying her posts and aesthetic.
“There were a lot of people, some followers, some close friends of mine, that her stuff popped up on their ‘For You’ page and they thought it was mine, really,” Gifford said in a video interview from Minnesota.
“They obviously saw the name on the account and got confused,” Gifford said of his followers, who alerted them to the similarities in their content. “It was very emotional to see.”
This confusion by her followers is a focus of Gifford’s suit. She also said she saw a drop in sales of the items she posted when Shiel posted something 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 time curating.
Over the summer, Schill’s attorneys filed a motion to dismiss most of the allegations presented in the complaint. Condemning Gifford’s “‘throw everything at the wall and see what sticks approach'”, Sheil’s lawyers suggested that “the main theme of Gifford’s gripe is that she believes Sheil’s posts and overall aesthetic are ‘very similar’ to Gifford’s.”
But that, they maintain, is an unenforceable claim under the Digital Millennium Copyright Act, which applies only to altering or reproducing a similar work without proper copyright notice.
“Because the complaint only alleges the creation of similar images — not the reproduction of similar ones,” Shiel’s lawyers argued, “Gifford’s DMCA claim fails as a matter of law.”
Last month, a magistrate judge recommended that Schill’s motion to dismiss be granted in part and denied in part. His lawyers said last month they were weighing how to proceed.
The complicated matter of copyright
In January, Gifford applied for and paid to copyright several of her social media posts that she claims were copied by Sheil. Although copyright registrations provide a basis for claiming infringement, they do not ensure ownership of style, media or likeness. Instead, they’re just the ticket to court, according to Rose Leda Ehler, a litigator at the Los Angeles law firm Munger, Tolles & Olson.
“Do I think this is going to be a trial or a really big issue in the world of copyright and trademark law? No,” Ehler said in a phone interview. “I suspect there will be discussions outside of court and the parties will likely find out or settle this case all the way to trial.”
Similar cases litigated in court have had surprising results. In 2018, photographer Jacobus Rentmeister sued Nike, claiming that the athletic apparel giant had copied a photo of Michael Jordan to create the company’s Jumpman logo, which it used in its iconic Air Jordan campaign.
The U.S. Court of Appeals for the 9th Circuit dismissed the claim after Nike pointed out that Nike did not use Rentmeister’s photo but instead hired another photographer to take the same photo. According to Ehler, copyrights do not protect ideas or the sweat of the brow, only expression.
A similar incident a decade ago had a different outcome. In 2005, photographer Jonathan Mannion sued an advertising agency for using a modified version of a 1999 photo he took of basketball star Kevin Garnett in a Coors Lite ad. Mannion won his case after the court found that the ad agency had recreated Garnett’s photo by copying angles, poses, compositions and lighting.
Since 1884, when the Supreme Court heard the first case of copyright infringement in a photograph — a portrait of 27-year-old Oscar Wilde — judges have been trying to find the best way to test a work for such infringement. .
“It’s not mathematically precise by any means,” Frommer said.
After Gifford’s trial, Sheil continued to share his life with his followers. He recently posted about buying a new house, which is furnished with a white boucle sofa.
In August, Gifford announced her first pregnancy on Instagram, posing in a cream-colored dress. She still adhered to her minimalistic, beige aesthetic.