At its core, the case the internet is referring to as the “sad beige lawsuit” is a feud between two social media influencers, Sydney Nicole Gifford and Alyssa Sheil, who both promote Amazon products. Gifford accuses Sheil of replicating her social media content, mimicking her “neutral, beige, and cream aesthetic,” and even copying apparel designs. The case raises the question: does the law protect an influencer’s aesthetic?
Gifford’s complaint alleges that Sheil began copying her content after the two met in late 2022 and collaborated on a photoshoot. Soon after, Sheil blocked Gifford from viewing her social media accounts and began posting nearly identical content, from curated Amazon product lists to apparel designs. Gifford’s complaint provides side-by-side comparisons alleging that Sheil’s posts mimic her style and feature identical products styled in similar settings. The comparisons include everything from beige cable knit sweater sets to photos of light wood circular coffee tables with plushy white sofas. Gifford further alleges that Sheil’s copying extends to trade dress—the unique look and feel of Gifford’s brand—as well as the unauthorized replication of Gifford’s photos, videos, and captions.
The lawsuit encompasses a wide array of claims, including copyright infringement, trade dress infringement, misappropriation of likeness, and violations of the Digital Millennium Copyright Act (DMCA). Sheil moved to dismiss and, just last week, Magistrate Judge Dustin Howell issued a Report and Recommendation (yet to be adopted by the district court judge), which would permit Gifford’s DMCA and Misappropriation of Likeness claims to go forward (Sheil did not move to dismiss Gifford’s copyright or trade dress claims). We discuss each of the claims below.
Key Legal Takeaways
- Copyright
Gifford’s claim centers on the idea that Sheil copied her Instagram, TikTok, and Amazon Storefront posts. Gifford registered many of her works with the U.S. Copyright Office, including 140 photos and various videos, such as “One Home Find You Need From Amazon” and “MakeupBag.2023.03.18.” While Sheil’s posts may be similar to Gifford’s, there is nothing in the complaint alleging that Sheil actually infringed on Gifford’s copyright by posting Gifford’s own images. Thus, Gifford’s copyright infringement claim will likely turn on whether Sheil’s posts are similar enough to Gifford’s posts to constitute copyright infringement.
- Trade Dress
Trade dress infringement is another focal point in Gifford’s lawsuit. Trade dress refers to the overall look and feel of a product or brand—elements that make it distinctive to consumers. Gifford claimed Sheil’s posts mimicked her “beige and cream aesthetic” in a way that caused confusion among followers. Specific markers of Gifford’s trade dress included the use of monochrome cream, grey, and neutral-beige colors, modern and minimalistic styling, and Gifford’s distinctive way of presenting products. Gifford claims that the markers of her trade dress include “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 herself; and Sydney’s distinct relatable way of speaking to followers.”
In order to prove that her trade dress was infringed, Gifford must show that consumers are likely to be confused as to the source or origin of Sheil’s goods. Another element of trade dress infringement is distinctiveness. Gifford must thus also show that her trade dress is either distinctive or has acquired distinctiveness due to secondary meaning. It will likely be difficult for Gifford to ultimately prevail, because she is certainly not the only influencer with a beige, monochrome aesthetic promoting products on social media.
- Misappropriation of Likeness
One of the more novel claims in this case is misappropriation of likeness. Gifford alleges that Sheil copied her “outfits, poses, hairstyles, makeup, and voice” to the point of impersonation. The complaint includes examples of Sheil posting photos wearing identical outfits styled in the same manner as Gifford’s—down to flower necklaces and cowboy boots—and even obtaining a similar tattoo.
While traditional misappropriation claims often involve the unauthorized use of someone’s image or name, this case pushes the boundaries by focusing on imitation rather than direct usage. In her motion to dismiss, Sheil argued that Gifford cannot state a claim for misappropriation of likeness where a defendant imitates a “choice of aesthetics.” Gifford’s misappropriation of likeness claim survived Sheil’s motion to dismiss, with the judge finding Gifford adequately alleged the claim, including that Gifford can be identified in Sheil’s posts and that Sheil benefited from increased traffic to her accounts as a result of the misappropriation. Yet Gifford must ultimately prove that she can be identified from Sheil’s posts. Sheil argues Gifford is not identifiable in her posts, creating an issue of fact. Can Gifford convince a Judge or jury that she is identifiable in Sheil’s posts because of her neutral, beige, and cream aesthetic?
- The DMCA
Gifford also alleges that Sheil violated the DMCA by creating “indistinguishable” posts from Gifford. In Sheil’s motion to dismiss, she argues that Gifford fails to point to any images that Sheil explicitly copied. In his Report and Recommendation, however, the magistrate judge declined to dismiss Gifford’s DMCA claim, finding that Gifford sufficiently stated a claim under the DMCA. The Court held that the DMCA may apply “even where the allegedly infringing work is not identical to the original.” Thus, Gifford will need to show that Sheil violated the DMCA by using Gifford’s copyrighted material, even if the posts are not identical, and without including Gifford’s name or username.
Word to the Wise
While Gifford has an uphill battle, if she is successful on her copyright infringement, misappropriation of likeness, and trade dress claims—it means that any influencer making content in a genre similar to another could face similar lawsuits. This is definitely one to watch!
The case is Sydney Nicole LLC, & Sydney Nicole Gifford v. Alyssa Sheil LLC, & Alyssa Sheil, No. 1:24-CV-00423-RP, 2024 WL 4923847 (W.D. Tex. Nov. 15, 2024).
