Alex Roberts

My name is Alex Roberts. I am professor of law and media at Northeastern University. How carefully are you following the sad beige influencer lawsuit? I'm following it pretty closely because it is right up my alley, to be honest with you. So I've written about influencer marketing and I teach courses on trademark and entertainment law and intellectual property law. So this is all my jam.

It is. So Gifford brought this lawsuit in April of 2024. So her causes of action in the complaint include copyright infringement, trade dress infringement, unfair competition, interference with contract, misappropriation of right of publicity, and more. To many experts, I think these claims seemed like overreach with very little chance of success. But...

Scheil moved to dismiss six of those eight causes of action. And kind of surprisingly, a magistrate judge in November declined to dismiss four of those challenged claims. And then in December, the supervising district judge adopted the magistrate's report and recommendations. So that doesn't mean Gifford wins on those claims, but it means the judges believed that she adequately pled them.

So at this stage, they can't be ruled out and the case can go forward. Are you surprised by that? I am surprised by that.

okay tell me why there's a lot out there a lot that content creators are making particularly when it comes to amazon recommendations particularly when it comes to this kind of clean girl aesthetic and this sad beige you know certain tones and colors that people are using a lot of it is really similar here's your step-by-step guide to becoming an elegant classy clean girl the first thing i want you to do is pick a signature fragrance

And the idea that there's something protectable here under intellectual property law is somewhat surprising. Of course, photos are protectable and audiovisual content is protectable. And Gifford actually registered copyright in those things. But the argument that what Shiloh's doing actually infringes those copyrighted works is— seems like a stretch to me.

And likewise, the trade dress claim, I mean, it's really going to be challenging for her to actually establish trade dress protection for kind of her color scheme and her general style. I was just looking at the amended complaint and she talks about like her way of relating to her followers and her tone of voice. I mean, that's Not usually what trade dress law protects.

And then lastly, misappropriation of right of publicity. I mean, that's usually like when a company takes a celebrity's name or photo and uses it in an ad without their consent. There you have a strong claim for right of publicity. But here she's saying essentially, you copied my look. You dressed like me. You did your hair and makeup like me.

You paired similar earrings with a similar outfit and white cowboy boots. And that's a use of my image or my persona. So that seems a little outside of what the law protects, but these cases are unpredictable.

It doesn't change what's actually copyrightable, right? Photos and videos are protectable. Longer text captions may be copyrightable, but short phrases are not. Curated lists can sometimes qualify for thin copyright protection. So... A court would really need to find sufficient similarity here for infringement. If they do, I think the chilling effects are really tremendous.

I think it leads to concerns by other content creators that they might be accused of copying somebody's content just because they're kind of following the same viral trend or creating similar categories of content. They might be accused of impersonating somebody's look just because they make similar choices in the way that they style their outfits.

So when we talk about chilling effects, what we mean is speech is chilled. People are afraid to create new works, to do different forms of expression that might lead to claims of infringement.

So I think one difference between this case and some really high profile copyright cases that we hear about Like in music, when you think about Blurred Lines and Katy Perry and Led Zeppelin or a case that Nike brings or something like that, typically those are defendants who are more well-resourced. They have a legal team. They have a label behind them. They have the ability to kind of protect.

put up a really robust defense and make their best argument. And when we're thinking about content creators at this level, we're usually thinking about somebody who's doing this as a side hustle or who's kind of trying to eke out a living, get some endorsements, get some paid promotions for their content, pull together a community, get some attention from followers.

but they are unlikely to have the kind of resources that will let them fight back, that will enable them to say, this is actually non-infringing or it's a fair use, or what you're claiming as trade dress is completely functional and unprotectable. So they're more likely to back down, they're more likely to settle, and frankly, they're much more susceptible to bullying.

So what we see in the IP context is when you have some cases setting out precedent that liability might exist, People get really aggressive with their cease and desist letters. So they say, you know, this other influencer was just found or maybe found liable for copycat posts. And the same thing's going to happen to you.

We're going to sue you next if you don't completely abandon this category of posts that you're making or cancel your account or whatever the demands are.

I think there's a philosophical question in there, and there's maybe also a legal liability question in there, right? So making creators fight to be seen and followed, that doesn't imply any liability for copyright infringement. And all creators in all genres, in all kinds of... industries have to compete for eyeballs and profits.

Low barriers to entry in this field probably means there's a lot more competition. It's a lot easier to post an Instagram post than it is to make a movie. Yeah. If we're thinking about the Digital Millennium Copyright Act, A DMCA analysis might ask whether Gifford filed takedown requests with these various platforms.

She's got a copyright management information claim, which argues that by creating similar posts without crediting Gifford's account, in essence removing Gifford's username from the works, Scheil violates the DMCA. If she actually succeeds on that claim, which again seems a stretch, I wonder whether that might affect how platforms choose to structure things.

Like, could they decide they want to require or apply watermarks or something like that? And likewise, if a court agreed with Gifford that Shiles' followers infringed Gifford's works when they viewed or downloaded or screencapped Shiles' posts, that might have implications for platforms and potentially platform liability for infringement.

If the parties settle or if Gifford prevails on some of her claims, really any of her claims, then we might begin to see more cases like this or see content creators lawyering up and sending cease and desist letters threatening similar suits.