Even before modern-day social media, aesthetic trends or so called “vibes” were pervasive online and in real life. Tumblr Girls in the mid-2000s, grunge fashion and metalheads in the 90s, and the mods and rockers of 1960s England dominated the media of their respective eras. It was not so long ago that the “Bieber Haircut” trumped the German-influenced Beatles Cut. As vibes come and go, evolving with cultural influences, these aesthetics impact not only people’s looks, but also the way they live. The question remains: who owns a vibe?

That issue is squarely presented in a very modern setting by the case of Gifford v. Sheil, in which two influencers with competing “clean girl” vibes battle over whether the plaintiff, influencer Sydney Nicole Gifford and her LLC (“Gifford”), can enforce her rights in her Amazon store front, Instagram posts, and Tik Tok videos against another influencer, Alyssa Sheil and her LLC (“Sheil”). Gifford contends that Sheil infringed copyright in the content Gifford posted. Gifford also contends that Sheil misattributed that content to herself rather than to Gifford under a provision of the Digital Millennium Copyright Act (“DMCA”),  which prohibits alteration of Copyright Management Information (so called “CMI”). Finally, Gifford claims trade dress infringement – or a copying of the “total image and overall appearance” that can attach to décor such as a restaurant, the layout and appearance of a mail-order catalog, and even the look and appearance of a website.

For some context of what the parties’ posts looked like, see below for an example of some of Gifford’s images included in the Complaint (photos posted by Gifford on TikTok):

Some of the allegedly infringing images posted by Sheil, also on TikTok and included in the Complaint, are reproduced below:

To be sure, there are similarities between the two influencers’ posts and both promote the sale of similar goods (in this case minimalist furnishings and accessories). The Complaint alleges that Sheil posted content “containing styling, themes, camera shots and angles, and text captions, among other elements, copying those of [Gifford’s] posts." But with respect to Gifford’s copyright infringement claim, it remains to be seen whether original creative expression, rather than a mere idea (or style) arguably pervasive on social media, was appropriated by Sheil. Third-party goods shown in the posts cannot be claimed as part of Gifford’s copyrightable expression because they were not created by the photographer (Gifford), but merely included in the photographs (although, to be sure, the angles, positioning and arrangement of the items might be copyrightable expression).

To prevail on the trade dress infringement claim, Gifford faces the hard task of proving that a pervasive aesthetic style is associated exclusively with her, and therefore, that she has trade dress rights in her content. For trade dress to exist, consumers must associate that trade dress with a single source (here Gifford). It will also be challenging to establish that those trade dress elements associated with Gifford’s posts are constant and unchanging, given the many different products she photographs and posts. A Starbucks coffee shop or an In-N-Out Burger is generally characterized by unchanging elements that are instantly recognizable and associated with a single source, but is an ever-changing array of social media posts featuring different items for sale as readily identified with a single source?

Even if Gifford can establish she has trade dress rights, she must also prove an appreciable number of consumers are likely to be confused as to whether Sheil’s content originates with or was endorsed by Gifford. Gifford alleges anecdotal evidence of actual consumer confusion (that is, the mistaken belief that Sheil’s content was endorsed, produced, or in some way associated with Gifford). Gifford also pleads that consumer confusion is further exacerbated by social media algorithms that feed its users content similar to that previously viewed by those users. A likelihood of confusion is the sine qua non of trade dress infringement. A few instances of actual confusion can be probative, but not dispositive, of that issue. The results of a consumer survey designed for the lawsuit will likely have to be considered in assessing likelihood of confusion.

And as to the CMI claim under the DMCA, is the respective parties’ content different enough to show that Sheil’s attribution of her content to herself rather than to Gifford is unlawful? We will follow the case closely and keep you posted on these and other issues.

As the Creative Economy becomes more popular for influencers and content creators, we’re likely to see guidance on copyright and other intellectual property law emerge.