Defending "Sad Beige": When Imitation Is Not Flattery

I. Overview

In an era of content creation, social media influencers are tasked with the creative job of building a personal brand to influence the general public's purchasing decisions and lifestyle choices. Creating a brand identity online raises questions about intellectual property protections of these influencer-curated aesthetics. Copyright protections may be available for content created in the form of photos and videos,¹ but enforcing these rights and proving infringement may be a separate issue, especially when influencers have adopted similar trends in building their personal brand.

In a recent case filed in the Western District of Texas, Sydney Nicole Gifford, an influencer, has brought suit against another influencer, Alyssa Sheil, for allegedly "stealing her vibe."² In the first of its kind, the suit alleges a variety of claims including copyright infringement, violation of the Digital Millennium Copyright Act (DMCA), and tortious interference.³ Giffo