Defending "Sad Beige": When Imitation is Not Flattery
I. Overview
In an era of content creation, social media influencers are tasked with the creative job of building a personal brand to influence the general public’s purchasing decisions and lifestyle choices. Creating a brand identity online raises questions about intellectual property protections of these influencer-curated aesthetics. Copyright protections may be available for content created in the form of photos and videos,[1] but enforcing these rights and proving infringement may be a separate issue, especially when influencers have adopted similar trends in building their personal brand.
In a recent case filed in the Western District of Texas, Sydney Nicole Gifford, an influencer, has brought suit against another influencer, Alyssa Sheil, for allegedly “stealing her vibe.”[2] In the first of its kind, the suit alleges a variety of claims including copyright infringement, violation of the Digital Millennium Copyright Act (DMCA), and tortious interference.[3] Gifford is seeking $150,000 in damages for “mental anguish” and loss of commercial profits.[4] Despite a motion to dismiss filed by the defendants, the magistrate judge assigned to the case has issued a report recommending that the claims of vicarious copyright infringement, DMCA violation, and misappropriation can be sustained, leaving many content creators invested in how the lawsuit will unfold.[5]
II. Background
This case, conveniently labeled the “sad beige” lawsuit, stems from the “sad beige” aesthetic both Gifford and Sheil have adopted as part of their personal brands.[6] “Sad beige” is a design trend that encourages the heavy use of neutral colors like beige in outfits, furniture, and home décor. The color itself carries a negative connotation because it has a perception of homogenizing style choices away from the use of color and originality.[7] Gifford is alleging that Sheil copied her “outfits, poses, hairstyles, makeup, and voice,” and she has submitted numerous exhibits to show that Sheil has curated her social media accounts to display a “neutral, beige, and cream aesthetic” very similar to that of Gifford’s.[8]
Gifford and Sheil create content across social media platforms, such as Instagram and Tiktok, and monetize their online presence through Amazon Storefronts, a webpage influencers use to list all their recommended Amazon products.[9] Influencers are able to earn commissions when followers use an influencer’s affiliate link to purchase Amazon products from that influencer’s Amazon Storefront.[10]
The two influencers have allegedly met before, including in Austin, Texas, to collaborate and create content together. According to the complaint, the first meeting was amicable and professional, but the relationship went downhill a month later when the pair met again to film content. During this second encounter, Sheil claims that she was mistreated by Gifford and felt unwelcome, so she decided to block Gifford on all her social media platforms.[11] After Sheil blocked Gifford, Gifford’s followers and close friends notified Gifford that Sheil’s content closely mimicked the “neutral, beige, and cream aesthetic”[12] that Gifford had built as her personal brand. Shortly thereafter, Gifford obtained copyright registrations for several of her social media posts and eventually brought this suit accusing Sheil of copyright infringement after cease-and-desist letters went ignored.[13] Specifically, Gifford alleges in her complaint that Sheil has advertised identical Amazon products on her Amazon Storefront, utilizing the same “styling, tone, camera angle, and/or text” in her content.[14]
III. Motion to Dismiss
In response to Gifford’s complaint, Sheil filed a partial motion to dismiss Gifford’s claims of vicarious copyright infringement, DMCA violation, misappropriation, tortious interference, unfair competition, and unjust enrichment.[15] In the motion to dismiss, Sheil described Gifford’s complaint as taking a “throw everything at the wall and see what sticks approach.”[16] Therefore, she argued that many of Gifford’s claims “lack[] any real merit.”[17]
Sheil’s motion to dismiss attacks Gifford’s vicarious copyright infringement claim by insisting that Gifford only alleges direct copyright infringement[18], and it takes the position that Gifford’s allegations that Sheil copied Gifford’s content and posted it as her own do not establish vicarious liability.[19]
Gifford also claims that Sheil violated the DMCA when Sheil posted content that was indistinguishable from that of Gifford’s, such as promoting the same beige-colored Amazon Storefront products.[20] Sheil argues that this does not state a claim for violation of the DMCA because Sheil created her own content that was only similar, rather than repost Gifford’s own content as her own.[21] Sheil alleges that she did not take Gifford’s photos, remove the copyright notice, and distribute this altered photo.[22] According to Sheil, violation of the DMCA cannot be asserted when works or images are merely similar.
Gifford further alleges that Sheil misappropriated her name and likeness for social gain by copying her style and aesthetic.[23] Sheil rebuts that claim, arguing that poses, clothes, and makeup are not legally protected likenesses and that Sheil is merely developing her own personal brand that is inextricably linked with Sheil herself. Sheil notes that all of her posts are posted under her unique social media username, making it impossible for her to be identified as Gifford.[24]
In her motion to dismiss, Sheil also argues against the tortious interference claim, arguing that it was not “reasonably probable” that a business relationship would form between an influencer and her followers and that she lacks the desire to interfere with the business relationship between Gifford and Amazon.[25]
IV. Magistrate Report and Recommendation
The report and recommendation of the magistrate judge, which has not yet been adopted by the district court judge at the time of this writing, recommends allowing Gifford’s claims of vicarious copyright infringement, violation of the DMCA, and misappropriation to proceed, while dismissing the claim of tortious interference.[26]
The magistrate judge found Gifford’s claim of vicarious copyright to have been adequately pled.[27] Although the report cites no case for the direct proposition that an influencer has the “right and ability” to control or supervise their followers, it points out past cases that have established that the “ability to block infringers’ access to a particular environment for any reason whatsoever” satisfies the “right and ability to supervise.”[28] Under the court’s reasoning, since Sheil has the ability to control what her followers see by choosing what she displays on her social media platforms, she has the ability to block third-party infringement and thus the right to control and supervise.[29]
The violation of the DMCA claim was also recommended to be sustained because sister courts in the Fifth Circuit have found that the DMCA can “properly apply even when allegedly infringing work is not identical to the original.”[30] According to the magistrate judge, posting content similar to Gifford’s without using her username, which constitutes copyright management information, is sufficient to state a claim for a DMCA violation.[31]
The court also recommended denying Sheil’s motion to dismiss Gifford’s misappropriation claim because, per the report, mimicking Gifford’s features is adequate to create a “virtually indistinguishable replica” of her likeness.[32] Sheil has “necessarily derive[d] benefit from [the] use” of Gifford’s likeness in the form of a commercial benefit, the increased performance on her Amazon Storefront.[33]
On the other hand, the claim of tortious interference was recommended for dismissal.[34] The magistrate judge claimed that Gifford failed to show that Sheil had any intent to interfere with Gifford’s contract with Amazon.[35] Even assuming that Sheil did have this intent, Gifford has still failed to establish that Sheil intended to cause a breach in Gifford’s contract with Amazon or that Sheil’s action caused any actual breach.[36]
V. Key Takeaways
Assuming the case moves forward, Gifford et al. v. Sheil et al. will be an interesting case to follow as it introduces novel theories and applications for intellectual property protections in the content creation space, where re-posting and imitation are rampant. This case will likely have implications beyond “sad beige” and may offer new guidance on intellectual property causes of action in the sharing economy.
[1] Gloria Niembro & Arturo Revilla, Influencers and Brands, Landslide, Oct. 4, 2023, at 1.
[2] Andrew Karpan, Texas Judge Suggests Letting Influencers Battle Over ‘Beige’ IP, Law 360 (Nov. 18, 2024), https://www.law360.com/articles/2262211/texas-judge-suggests-letting-influencers-battle-over-beige-ip; Sandra E. Garcia, Can You Copyright a Vibe?, N.Y. Times (Dec. 7, 2024), https://www.nytimes.com/2024/12/05/style/clean-girl-aesthetic-influencer-lawsuit.html.
[3] Report and Recommendations at 3, Gifford et al. v. Sheil et al., No. 1:24-cv-00423 (W.D. Tex. Nov. 15, 2024).
[4] Complaint at 16, 23, Gifford et al. v. Sheil et al., No. 1:24-cv-00423 (W.D. Tex. Apr. 22, 2024).
[5] Report and Recommendations, supra note 3, at 18-19.
[6] Emma Specter, Can You Ever Really Own an Aesthetic? That’s the Question at the Center of This Influencer Lawsuit, Vogue (Dec. 10, 2024), https://www.vogue.com/article/influencer-lawsuit-explainer.
[7] Chavie Lieber, ‘Sad Beige’ Has Taken Over Baby Gear, Clothing, Décor, Wall Street Journal (Nov. 16, 2022), https://www.wsj.com/articles/hot-new-baby-gear-is-sad-beige-11668556027.
[8] Complaint, supra note 4, at 4.
[9] Id. at 9.
[10] Sandra E. Garcia, supra note 2.
[11] Id.
[12] Complaint, supra note 4, at 4.
[13] Id. at 14.
[14] Id. at 15.
[15] Defendants’ Partial Motion to Dismiss at 1, Gifford et al. v. Sheil et al., No. 1:24-cv-00423 (W.D. Tex. June 21, 2024).
[16] Id.
[17] Id.
[18] Id. at 2.
[19] Id.
[20] Complaint, supra note 4, at 19.
[21] Defendants’ Partial Motion to Dismiss, supra note 15, at 3-4.
[22] Id. at 5-6.
[23] Complaint, supra note 4, at 22.
[24] Defendants’ Partial Motion to Dismiss, supra note 15, at 9-10.
[25] Id. at 14-16.
[26] Report and Recommendations, supra note 3, at 18-19.
[27] Id. at 6.
[28] Id. at 5-6 (citing Arista Recs. LLC v. Usenet.com, Inc., 663 F. Supp. 2d 124, 157 (S.D.N.Y. 2009) (quoting A&M Recs., Inc. v. Napster, Inc., 239 F.3d 1004, 1023 (9th Cir. 2001))).
[29] Id. at 6.
[30] Id. at 7 (citing ADR Int’l. Ltd. v. Inst. for Supply Mgmt. Inc., 667 F. Supp. 3d 411, 417 (S.D. Tex. 2023)).
[31] Id. at 8.
[32] Id. at 9-10.
[33] Id. at 10-11.
[34] Id. at 13.
[35] Id.
[36] Id.