Influencer vs. Influencer: Who Owns BeigeTok?

Can social media influencers copyright an aesthetic? TikTok socialite Sydney Nicole Gifford thinks so — and so might the US District Court for the Western District of Texas.

Earlier this year, Gifford, who has more than half a million followers on TikTok, sued fellow social media influencer Alyssa Shiel after seeing her hawk Amazon products through posts with the same “neutral, beige, and cream aesthetic” of her own brand identity. That case narrowly survived a motion to dismiss on Dec. 10.

It’s the first case of its kind for social media influencers, and if Gifford prevails, the average For You page might look far less #millenialgrey.

Monochrome Mimicry?

In Gifford’s complaint, she counted more than 60 instances of Shiel allegedly cribbing her style. Gifford claims that after she posted a montage of her favorite Amazon products (beige home office décor, a cream Nespresso machine, a wave patterned rug, acrylic meal-planning calendars), Shiel uploaded a substantially similar video with the same faves two days later.

Or there’s Gifford’s post where she takes a photo of herself in the mirror wearing a cream-colored cableknit two-piece. Less than a week later, Gifford says, she discovered Shiel’s post in which she wears the same set and poses in front of a mirror.

Worse, Gifford alleges, shortly after she launched her own line of “black, white, and grey loungewear and athletic apparel” on Amazon, called the “Wardrobe Essentials Club,” Gifford discovered Shiel’s own “Retail Therapy Club” line—with black, white, and gray loungewear and athletic apparel.

Gifford asserts eight different causes of action, including copyright infringement, tortious interference, misappropriation, unfair competition, and unjust enrichment. Shiel requested to dismiss six of these claims, arguing that she didn’t break any laws by making similar social media posts. (She didn’t contest the core copyright claim and trade dress infringement claim, acknowledging in her motion to dismiss that these claims “at least pass pleading muster.”)

Beyond the Beige 

On Nov. 15, U.S. Magistrate Judge Dustin Howell recommended that most of Gifford’s claims ought to be dismissed, except for her vicarious copyright infringement, DCMA violations, and misappropriation of likeness. U.S. District Judge Robert Pitman agreed.

With respect to the copyright claims, Gifford will win or lose based on whether her posts are truly creative and original — and, in turn, whether Sheil’s allegedly copycat pics are virtually identical to them.

Curiously, the Court also kept alive Gifford’s cause of action for misappropriation of likeness. The right to publicity extends to one’s name, image, and likeness, preventing third parties from helping themselves to an individual’s hard-won goodwill. Gifford says Sheil “sought to mimic a plethora of Gifford’s features” to “pass herself off as Gifford” such that “Gifford can be identified as the individual whom [Sheil’s] posts appropriate.” Gifford claims she suffered mental anguish and monetary loss (fewer views) from Sheil’s alleged mimicry, which extends, she says, even to a similar flower tattoo on her upper arm.

Even though Shiel didn’t actually use Gifford’s likeness, the Court found it plausible that Shiel created a “virtually indistinguishable replica.” As Judge Howell explained: “Here, Gifford has alleged that her likeness has value and that Sheil used it for commercial gain.”

Cultural Appropriation?

With her six-digit social media following and an apparently bustling Amazon storefront, Gifford has incentive to protect her valuable contribution to American vibes culture: Neutral colors, monochromatic workout gear, and beige décor.

But even if Shiel allegedly stole Gifford’s look, it’s not certain that it was Gifford’s look to steal in the first place. Kim Kardashian might have done it first: Ever seen her California “minimal monastery” mansion? Or what about the “clean girl” aesthetic itself?

That’s why there’s a real concern in letting a lawsuit like this move forward. When the only thing these influencers really have in common is their appeal to the same trend, a court’s willingness to let this case proceed could chill speech on the Internet. Social media culture thrives on iterating within certain aesthetics, and this includes posts which rep the same color palettes, fonts, and styles. To allow one user to claim ownership over these looks would be to stunt virality and hamper the constant change which keeps users’ For You page fresh.

Don’t get me wrong: #millenialgrey needs to go. But it would likely be harder for content creators to get beyond beige if they face copyright lawsuits in the process.