Copyright & The Influencer’s Look and Feel
Can social media influencers protect the look and feel of their online content under U.S. copyright law? According to the social media influencer, Sydney Gifford (@sydneynicoleslone) the answer is yes. In a federal lawsuit filed in the Western District of Texas this year, Ms. Gifford alleges that another social media influencer, Alyssa Sheil (@alyssasheill) created posts that mimicked Ms. Gifford’s style (or as The New York Times defines it her “vibe”). This is not a case about Ms. Sheil using Ms. Gifford’s actual photographs or videos on her Instagram or TikTok accounts. Rather, Ms. Sheil created content that Ms. Gifford claims mimicked her content such that Ms. Sheil ran afoul of the law, notably copyright law. Will Ms. Gifford prevail on her copyright claim? If she does, then this will likely open the flood gates of influencer. v. influencer claims, which may not be a good thing for copyright law.
Copyright law protects a person’s original work of authorship fixed in a tangible medium, e.g. photographs, sculptures, novels, poems, artwork etc. This right is violated when someone makes a substantially similar copy of the original work having access to that work. It is true that Ms. Sheil had access to Ms. Gifford’s photos and that there are similarities between the photographs, i.e. colors, styles of clothing worn, objects depicted in the photographs, places visited. But are these “similarities” enough to warrant a copyright infringement claim? Copyright law does not protect ideas, just the expression of those ideas. And for there to be a violation of the law, there must be “copying” of the work.
Overall, this “copying” concept is easy to understand when we have a photograph that is just reposted by a third party. But here, Ms. Sheil took her own photographs albeit using the same “vibe”. Ms. Sheil did not copy Ms. Gifford’s photographs. And Ms. Gifford will unlikely be able to claim that she is the copyright owner of the items depicted in these photographs. As a result, the “vibe” of this case is not a violation of copyright law but rather (if anything) unfair competition and trade dress law, which protects a person’s brand, the look and feel of the service offered that distinguishes its source.
For now, the case is still pending while the parties litigate their dispute. We will see what the court decides (if the case is not settled before then).