Can you Copyright your Vibe? The New Frontier of IP

Introduction

In April 2024, Sydney Gifford, a Texas-based influencer, filed suit in Texas federal court against another Texas-based influencer, Alyssa Sheil, for allegedly copying the beige and cream aesthetic of her social media, clothing, and brand.¹[1]Sydney Nicole LLC v. Alyssa Sheil LLC, 2024 WL 4923847 (W.D. Tex. Nov. 15, 2024), report and recommendation adopted, 2024 WL 5077608 (W.D. Tex. Dec. 10, 2024). In multiple posts, there is a resemblance between Gifford’s and Sheil’s outfits, poses, and angle of the pictures, with Sheil’s pictures being posted mere days after Gifford’s.

In the complaint, filed in the Western District of Texas, Gifford claimed that Sheil directly copied a number of her posts on various social media apps, including Instagram, TikTok, and Amazon Storefront, attaching numerous exhibits to back up her claims.²[2]Id. at *1. Gifford and her company, Sydney Nicole LLC, brought eight causes of action against Sheil and her company, Alyssa Sheil LLC.³[3]Id. Gifford alleged copyright infringement, vicarious copyright infringement, trade dress infringement, misappropriation of likeness, tortious interference, unfair trade practices and competition, unjust enrichment, and violations of the Digital Millennium Copyright Act (“DMCA”).⁴[4]Id.

This case was rooted in copyright law, which allows for legal protection of original works that are fixed in a tangible medium.⁵[5]Copyright in General, U.S. COPYRIGHT OFF.: FREQUENTLY ASKED QUESTIONS, https://www.copyright.gov/help/faq/faq-general.html#what (last visited Sept. 12, 2025). Works do not need to be registered with the United States Copyright Office to be protected.⁶[6]Id. However, a certificate of registration may allow for statutory damages and attorney’s fees to be awarded in the event of copyright infringement.⁷[7]Id. Civil copyright infringement occurs when a “copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.”⁸[8]Definitions, U.S. COPYRIGHT OFF., https://www.copyright.gov/help/faq/faq-definitions.html (last visited Sept. 12, 2025) (defining “copyright infringement”). This article breaks down the claims that Sheil motioned to dismiss, the resolution of the case, and analyzes the future of social media and influencers in copyright law.

Sydney Nicole LLC v. Alyssa Sheil LLC

Gifford sought copyright protection for several of her social media posts after seeing similarities between her and Sheil’s posts.⁹[9]Sandra E. Garcia, Can You Copyright a Vibe?, N.Y. TIMES (Dec. 5, 2024), https://www.nytimes.com/2024/12/05/style/clean-girl-aesthetic-influencer-lawsuit.html. Sheil moved to dismiss six of the causes of action after receiving Gifford’s complaint: vicarious copyright infringement, DMCA violations, misappropriation of likeness, tortious interference, unfair competition, and unjust enrichment.¹⁰[10]Sydney Nicole LLC, 2024 WL 4923847 at *2-7. The motion did not address the copyright infringement and trade dress infringement claims.¹¹[11]Id. The court granted in part and denied in part Sheil’s motion, specifically dismissing Gifford’s claims of tortious interference, unfair competition, and unjust enrichment.¹²[12]Sydney Nicole LLC v. Alyssa Sheil LLC, 2024 WL 5077608, at *1 (W.D. Tex. Dec. 10, 2024).

Gifford claimed that Sheil was reproducing, distributing, and publicly displaying her copyrighted work to her many followers on social media, and accused her of vicarious copyright infringement.¹³[13]Sydney Nicole LLC, 2024 WL 4923847 at *2. This occurs when an individual is held responsible for infringement committed by a third party.¹⁴[14]Vicarious Infringement, CORNELL L. SCH. LEGAL INFO. INST., https://www.law.cornell.edu/wex/vicarious_infringement (last visited Sept. 12, 2025). Gifford alleged Sheil posted her copyrighted material to Sheil’s social media, claiming Sheil was responsible for the infringement committed by her social media followers.¹⁵[15]Sydney Nicole LLC, 2024 WL 4923847 at *2. The magistrate judge found this to be a novel idea, noting the absence of case law addressing whether a social media user has the ability to monitor their viewers and what they do with their posts.¹⁶[16]Id. However, the magistrate judge’s report and recommendation cites Dish Network LLC v. Datacamp Ltd., which held that a defendant may have the ability to stop infringement if they are able to limit a user’s access to their system.¹⁷[17]See Dish Network LLC v. Datacamp Ltd., 2023 WL 4549528 (N.D. Ill. July 14, 2023). In the present case, this may involve blocking followers from viewing Sheil’s account.¹⁸[18]Dish Network LLC v. Datacamp Ltd., 2023 WL 4549528 (N.D. Ill. July 14, 2023). Sheil has over 157,000 followers on her public Instagram account as of September 2025.¹⁹[19]Alyssa Sheil (@alyssasheill), Instagram, https://www.instagram.com/alyssasheill (last visited Sept. 12, 2025). Accessing her posts does not require users to follow her account.²⁰[20]Id. This means Sheil is not able to monitor each of her followers or public viewers and know whether they are saving or sharing her posts.

The Texas court dismissed Gifford’s unjust enrichment claim, explaining it was preempted by federal copyright law, which means that the federal copyright laws take precedence over state laws.²¹[21]Sydney Nicole LLC, 2024 WL 4923847 at *7; see Preemption, CORNELL L. SCH. INFO. INST., https://www.law.cornell.edu/wex/preemption (last visited Sept. 12, 2025). Unjust enrichment occurs when one party has received a benefit from another without the proper restitution required by law.²²[22]Sydney Nicole LLC, 2024 WL 4923847 at *7. Gifford argued that Sheil received the benefit of commission and views on the posts she copied from Gifford.²³[23]Id. Gifford emphasized that this claim is based on Sheil’s interference of Gifford’s ability to uphold her contract with Amazon.²⁴[24]Id. Amazon contracts with influencers to promote their products by creating “storefronts,” and the influencer gets a commission for purchases.²⁵[25]Amazon Influencer Program, AMAZON, https://www.amazon.com/shop/info (last visited Sept. 16, 2025). The court found that Gifford did not sufficiently allege Sheil’s conduct and that it was preempted by federal copyright law.²⁶[26]Id.

The additional DMCA claims require a plaintiff to allege: (1) the existence of similar work; (2) that the defendant distributed or copied; (3) while knowing it was removed or copied without the copyright owner’s permission; and (4) knows or has reasonable grounds to know that the distribution will constitute an infringement.²⁷[27]Sydney Nicole LLC, 2024 WL 4923847 at *3. The DMCA is an additional copyright infringement protection for online service providers and individuals that present their work in a digital format.²⁸[28]The Digital Millennium Copyright Act, U.S. COPYRIGHT OFF., https://www.copyright.gov/dmca/ (last visited Sept. 12, 2025). Gifford claimed that Sheil violated the DMCA when she intentionally created close to identical posts without crediting Gifford.²⁹[29]Sydney Nicole LLC, 2024 WL 4923847 at *3. Sheil claimed her posts were not reproductions of Gifford’s posts.³⁰[30]Id. Sheil argued that because they were not identical images, she could not be held liable.³¹[31]Id. Interestingly, however, the court explained that other circuit courts have applied the DMCA to works that are not identical to the original.³²[32]Id. The court cited Huffman v. Activision Publg., Inc., which held that while aspects of the work in question were changed, the work nonetheless incorporated copyrighted material.³³[33]Id. (citing Huffman v. Activision Publg., Inc., 2020 WL 8678493 (E.D. Tex. Dec. 14, 2020).). However, the question still remains: how can anyone be sure that Gifford’s posts are the “original?” Gifford’s own posts could have been inspired by other influencers, magazine editorials, or advertisements. This minimalistic, beige aesthetic has been an ongoing trend, suggesting that Sheil may have had a stronger claim.

The next claim that Sheil moved to dismiss was misappropriation of likeness.³⁴[34]Sydney Nicole LLC, 2024 WL 4923847 at *4. Under Texas law, a plaintiff must allege: (1) that the defendant appropriated the plaintiff’s name or likeness knowing the value associated with it; (2) that the plaintiff is identifiable; and (3) that the defendant obtained some advantage or benefit from the appropriation.³⁵[35]Id. Gifford argued that Sheil imitated her voice, poses, outfits, hairstyles, and makeup in multiple posts in a way that reminded her followers of Gifford and that such appropriation resulted in Sheil’s monetary gain.³⁶[36]Id. Sheil argued that she never used Gifford’s actual images, so she never misappropriated Gifford’s likeness.³⁷[37]Id. The court cited a case that held the use of aspects of one’s persona is misappropriation if it is used in a manner that symbolizes or identifies the person.³⁸[38]Id. See Henley v. Dillard Dept. Stores, 46 F. Supp. 2d 587 (N.D. Tex. 1999). The use could be symbolized through the similarities that Gifford argued, such as voice, poses, outfits, and overall aesthetic.³⁹[39]Id. The court also cited Meadows v. Hartford Life Ins. Co, which held that misappropriation commonly occurs when a person’s likeness is impersonated for personal gain.⁴⁰[40]Id. See Meadows v. Hartford Life Ins. Co., 2006 WL 2336913 (S.D. Tex. Aug. 10, 2006). The court held that Gifford sufficiently alleged that Sheil had increased monetary gain from the misappropriation of Gifford’s likeness.⁴¹[41]Sydney Nicole LLC, 2024 WL 4923847 at *5. Since Gifford argued that her likeness has value and Sheil used that value for commercial gain, the court found Gifford met the third element of the claim.⁴²[42]Id.

The court granted in part and denied in part Sheil’s motion to dismiss some of Gifford’s claims.⁴³[43]Sydney Nicole LLC, 2024 WL 5077608 at *1. The court granted the dismissal of the tortious interference, unfair competition, and unjust enrichment claims.⁴⁴[44]Sydney Nicole LLC, 2024 WL 4923847 at *5. The motion to dismiss the vicarious copyright infringement, DMCA violations, and misappropriation of likeness was denied, suggesting some merit to the claims.⁴⁵[45]Id. Gifford dropped the case in May 2025, claiming she “did not have the bandwidth to continue.”⁴⁶[46]Influencer drops lawsuit alleging rival creator copied her videos, NBC NEWS (May 30, 2025), https://www.nbcnews.com/tech/internet/influencer-drops-lawsuit-alleging-rival-creator-copied-videos-rcna210019.

Is This a Landmark Case?

Case law exists to support the protection of artwork, music composition, logos, and even human-made micro-organisms.⁴⁷[47]See Diamond v. Chakrabarty, 447 U.S. 303 (1980). However, does copyright law cover one’s vibe? Despite the case being resolved outside of court, this case has the potential to leave a lasting impact on the social media industry and copyright law in practice.

The magistrate judge stated in the decision that this case appears to be the first of its kind.⁴⁸[48]Id. Social media has become a livelihood for many, including Gifford, suggesting the influencer economy has been on the rise – making one’s voice, brand, and aesthetic even more valuable.⁴⁹[49]See “Sad Beige” Lawsuit Over “Copycat” Influencer Aesthetics Comes to a Close, THE FASHION LAW (May 28, 2025), https://www.thefashionlaw.com/lawsuit-over-copycat-influencer-aesthetics-comes-to-a-close/; see also How The Creator Economy Is Reshaping Modern Marketing – And Why Brands Are Paying Attention, FORBES (June 16, 2025), https://www.forbes.com/sites/lowes-creator/2025/06/16/how-the-creator-economy-is-reshaping-modern-marketing–and-why-brands-are-paying-attention/. The minimalistic and neutral-toned “vibe” that Gifford is trying to copyright is extremely common. Some of the posts that Gifford claimed to be copied by Sheil are also similar to those of several influencers who have the same aesthetic and similar posts. It was very unlikely that Gifford would have been able to prove that Sheil intentionally copied her, and not just what is currently popular and trending. However, the originality threshold for copyrightable material is very low.⁵⁰[50]See Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991). Sheil’s counsel stated that the resolution was a win for them and proof that Gifford’s claims lacked merit.⁵¹[51]THE FASHION LAW, supra note 4. Gifford’s counsel responded that the dismissal and settlement are not evidence of the strength or weakness of the claims.⁵²[52]Id.

Even with the dismissal of this case, this may be one of many copyright infringement cases involving social media. Where is the line drawn when it comes to inspiration and trends? Is there another way for influencers and individuals who make a living online to protect their work and posts? This is still a developing area of law, even as social media and online influences continue to dominate society.

Written by: Samantha Endlich
Samantha is a 2027 J.D. Candidate at Brooklyn Law School.