Can You Copyright a Vibe?

A superficial spat over sweaters and hairstyles, or a legal battle that gets at the heart of social media influence?

The oversized beige cable-knit sweater. The centre-parted hair. The right knee pointed out, creating a curve at her left hip.

Practically every detail in the photo – right down to the matching short set – looked familiar to Sydney Gifford. So did the woman posed in front of the nondescript white wall.

Days earlier, Sydney, a 24-year-old lifestyle influencer, had shared a photo with her thousands of followers that was virtually identical. The woman in this new photo was a fellow influencer, Alyssa Sheil, with whom she had gone shopping and done a photo shoot months earlier.

At the time, she thought their interactions had been merely awkward. But as she scrolled through Alyssa’s photos on Instagram for the first time in nearly a year, she said, Sydney suspected those meetings had been some kind of aesthetic espionage.

Sydney claims that Alyssa, 21, not only started to mimic her online persona but also appropriated her entire look. And now she is suing.

Sydney had copyrighted several of her social media posts in January, after noticing the similarity between Alyssa’s posts and her own. Several photos were submitted as evidence in the lawsuit Sydney filed this year in a federal court in Texas accusing Alyssa of copyright infringement. But in the carefully curated world of social media, Sydney has levelled a perhaps more severe charge against her: stealing her vibe.

“This isn’t a coincidence,” Sydney, who has about 300,000 followers on Instagram and more than 500,000 on TikTok, recalled thinking. “Something is definitely happening here.”

As the creator economy booms, teasing the possibility of a lucrative livelihood, Sydney’s case seeks to clarify the line where imitation may turn from flattery into forgery.

In several interviews beginning in August, experts said influencers have to navigate a blurry landscape in which assigning credit to who created what can be daunting or, at times, impossible.

“There really is a sense that you’re both a creator and a borrower,” said Jeanne Fromer, a professor of intellectual property law at New York University. “Fashion is built on that. All the creative industries – painting, music, movies – they’re all built on borrowing in certain ways from the past and also ideally trying to bring your own spin to something. I don’t know that anyone wants to go too far as a result.”

Alyssa said that Sydney’s claims about her posts were unfounded and that she found them deeply upsetting, as an influencer in her own right.

“This is how I make my living and not only that, this is my personal brand,” Sheil said in an interview. “I kind of feel like I need to defend myself.”

Jeanne described the lawsuit as one of the first of its kind, in which one social media user is suing another – rather than the tech company behind the platform. Despite seeming outlandish, this “kitchen sink intellectual property complaint” could hold up in court, she said, adding that the most substantial claim was copyright infringement.

Depending on what comes of the lawsuit, it could set an important precedent for other influencers and how they present themselves online.

‘I Didn’t Feel Welcome’

According to Alyssa, Sydney had sent her a private message on Instagram asking if she wanted to hang out with her and another influencer friend. The women walked around, perused the offerings at H&M and Aritzia, had lunch, and went their separate ways.

“I was definitely anxious because they were already friends,” Alyssa said. “I didn’t really know what I was walking into with them already being friends, and it went OK.”

Sydney described the get-together as “professional,” and said it was mainly to film content and bounce ideas.

“I really don’t recall who reached out to who,” said Sydney, who now lives in Minnesota. “I know we had been mutually following each other for a while, so I’m not sure who initiated it.”

The three women met up again the next month at a parking garage in downtown Austin to shoot photos together to post on their individual accounts. This time though, Alyssa did not feel welcome, she said.

“I wasn’t spoken to for the first 45 minutes to an hour of getting to the parking garage,” Alyssa said. “Sydney also took photos with the third friend that was there and posted it and didn’t tag me.”

When Alyssa went home, she blocked Sydney across all platforms.

“I didn’t really see anything wrong with blocking her,” Alyssa said. “I didn’t feel welcome. I didn’t feel like that was someone that I needed to have a relationship with on social media if the relationship we had in real life wasn’t good.”

Livelihoods on the line

For Sydney, the lawsuit isn’t a matter of personal pride: it’s about protecting her business.

Sydney and Alyssa both create social media content meant to induce their followers to buy items – tumblers, coffee tables, pyjama sets – from their Amazon “storefronts.” This is how both women make their living, they said, and it is what Sydney is claiming in her lawsuit that Sheil infringed on by copying her posts and aesthetic.

“There were multiple people, some followers, some close friends of mine, that her content had popped up on their ‘For You’ page and they thought it was mine, genuinely,” Sydney said during a video interview from Minnesota.

“They obviously looked at the name on the account and were confused,” Syndey said of her followers, who she said alerted her to the similarities. “It was very emotional to see that.”

This confusion by her followers is a focus of Sydney’s suit. She also said that she had noticed a dip in the sales of items she posted about when Alyssa made a post similar to hers, citing information from Amazon. In the lawsuit, Sydney identified a list of items that she claims Alyssa copied from her posts and sold on her Amazon storefront – items, she said, that she spends considerable amounts of time curating.

Over the summer, lawyers for Alyssa filed a motion to dismiss most of the charges presented in the complaint. Decrying Sydney’s “‘throw everything at the wall and see what sticks’ approach,” Alyssa’s lawyers suggested that “the overarching theme of Sydney’s gripe is that she believes Alyssa’s posts and overall aesthetics are ‘too similar’ to Sydney’s”.

But that, they maintain, is an unenforceable claim under the Digital Millennium Copyright Act, which comes into effect only when an identical work is altered or reproduced without the appropriate copyright information.

“Because the complaint only alleges the creation of similar images – not the reproduction of identical ones,” Alyssa’s lawyers contended, “Sydney’s DMCA claim fails as a matter of law.”

Last month, a magistrate judge recommended that Alyssa’s motion to dismiss be granted in part and denied in part. Her lawyers said last month that they were weighing how they want to proceed.

The Murky Matter of Copyright

In January, Sydney applied and paid for copyrights of several of her social media posts that she claims Alyssa copied. Although the copyright registrations give her grounds to claim infringement, they do not ensure ownership of style, media or even likeness. Rather, they are simply a ticket to court, according to Rose Leda Ehler, a litigator at the Los Angeles law firm Munger, Tolles & Olson.

“Do I think it’s going to make it all the way to trial or become a really big case in the world of copyrights and trademark law? No,” Rose said in a phone interview. “I suspect that there will be discussions outside of the courtroom and the parties will probably figure out or resolve the matter short of it going all the way to trial.”

Similar cases that have been litigated in court have had surprising outcomes. In 2018, photographer Jacobus Rentmeester sued Nike, claiming that the athletic apparel giant copied his photo of Michael Jordan to create the company’s Jumpman logo, which it used in its Air Jordan campaign.

The claim was dismissed by the US Court of Appeals for the Ninth Circuit after Nike pointed out that it did not use Jacobus’ photo but instead hired another photographer to take a similar image. Copyrights do not protect ideas or the sweat of the brow, only expression, according to Rose.

A case a decade earlier had a different outcome. In 2005, photographer Jonathan Mannion sued an advertising agency for using a modified version of a photo he had taken in 1999 of basketball star Kevin Garnett in a Coors Light ad. Mannion won his lawsuit after the court observed that the ad agency had re-created the photo of Garnett through imitation of angle, pose, composition and lighting.

Since 1884, when the first case of copyright infringement over a photograph was heard by the Supreme Court – over a portrait of Oscar Wilde – judges have been trying to find the best way to test a work for such an infraction.

“It’s not mathematically precise in any way,” Jeanne said.

Since Sydney’s lawsuit, Alyssa has continued to share her life with her followers. She recently posted about buying a new home, which is furnished with a white boucle couch.

In August, Sydney announced her first pregnancy on Instagram, posing in a cream-coloured dress. She was still adhering to her minimalistic, beige aesthetic.

This article originally appeared in The New York Times.

Written by: Sandra E. Garcia

©2024 THE NEW YORK TIMES

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