Written by Guest Blogger John Barry,

3L student at Florida State University, College of Law

Can you be held liable for copyright infringement if your social media posts are too similar to another person’s posts? 

One plaintiff thinks so. 

This question has been raised by an ongoing social media copyright battle. The outcome may have significant repercussions on marketing and social media strategies for businesses.  

Influencer Fight! It’s a Social Media Copyright Battle

Sydney Nicole Gifford is an influencer with over half a million followers across various online and social media platforms, including Instagram, TikTok, and Amazon Storefront. Alyssa Sheil is an influencer on the same online and social media platforms as Gifford, but with a smaller following. 

Their relationship was amicable in the beginning. Then, in January 2023, they conducted a joint photoshoot to promote each other’s business. Gifford alleges that Sheil blocked her on social media and began to publish posts that imitated Gifford’s posts after the photoshoot. In April 2024, Gifford sued Sheil, alleging various claims of copyright infringement and trade dress infringement.

Specifically, Gifford alleges that Sheil copied the neutral, beige, and cream aesthetic of Gifford’s brand identity, featured the same or similar product promotions, and began replicating Gifford’s styling and textual captions. Throughout Gifford’s complaint, she attached numerous side-by-side photos, showing the similarities between the two influencers’ posts.

Trade Dress for Social Media Aesthetic? 

Most of Gifford’s claims are the first of their kind. In particular, Gifford’s trade dress claim is an interesting application of IP precedent.

A trade dress is a “product’s design, product packaging, color, or other distinguishing nonfunctional element of appearance.” The trade dress of a product can be protected in a similar way a trademark can. Not only have courts applied trade dress law to tangible products, but as Gifford argues, some courts have extended protection to the overall motif of a restaurant, the appearance of a catalog, and the feel of a website.

Gifford claims that her trade dress is the “promotion of products only falling within the monochrome cream, grey, and neutral-beige color scheme; styling of products in modern, minimal backdrops; creation of content featuring Sydney [Gifford] herself; and [Gifford’s] distinct relatable way of speaking to followers.” 

Thus, by posting in a neutral-beige color scheme, using similar phrasing, and styling products in minimal backdrops, Sheil has violated Gifford’s trade dress according to the complaint.

Copyright Infringement… Or Mere Imitation? 

Gifford has registered 140 photos and at least 18 videos with the U.S. Copyright Office. Sheil has not registered any of her content with the U.S. Copyright Office. In her complaint, Gifford alleges that Sheil has infringed on these registered works by replicating them on Sheil’s own account.

For example, Gifford recounts one instance where she visited “The Tox Shop” in Austin, Texas and posted a promotional video. The video featured the store’s doormat, a rack of clothing in the store, a neon light décor, and Gifford receiving a cosmetic treatment. 

Two weeks after this, Sheil posted a video of Sheil attending the same institution. The video also featured the doormat of the store, a rack of clothing, neon light décor, and Sheil receiving a cosmetic treatment.  

The case was just filed in April 2024, so the parties are in the initial phases of the case. We will have to wait and see how the court rules on the Partial Motion to Dismiss Counts 2, 3, 5,6, 7 & 8 of the Complaint for failure to state a claim.  

Sheil’s content may be distinct enough to thwart the claims against her. But by registering her copyrights, Gifford has already gained important benefits. 

For one, registering the copyrights permitted her to bring this suit. The registrations also establish a presumption in court as to the validity of the copyright. 

Additionally, if the registrations were obtained within three months of publication and prior to the infringement, statutory damages and attorney’s fees are available to Gifford, as opposed to just actual damages and profits – which may be harder to prove. 

A Potential Legal Minefield

It is unclear if Gifford’s suit will succeed. Numerous intellectual property experts describe her claims as “shaky” because, in the world of social media, many influencers follow similar trends and aesthetics while promoting similar products. 

However, if Gifford does succeed on her claims and she does have ownership over her social media aesthetic, operating on social media for businesses would become even more complicated.

Either way, this case is something to keep an eye on. Social media has clearly become a powerful tool for businesses. Because of this, it is important to understand the legal ramifications that may come along with using social media as a tool for business.