Social media moves quickly, and you’re forgiven if you’re not up to date with every microtrend listed above. However, for influencers keen to earn their stake in an industry valued at $250 billion, their ability to market these aesthetics – and position themselves as the driver of a visual ‘movement’ – is crucial. In a chic, modern-day David and Goliath battle, two US-based influencers have uncovered a philosophical dilemma for the TikTok age: is there copyright in a vibe?

Sydney Nicole Gifford (who has the greater following) sued fellow content creator Alyssa Sheil in April 2024 in the USA, alleging infringement of her “clean girl aesthetic”. Gifford’s claim stated that, after a collaboration between the pair, Sheil blocked her social media accounts before publishing a series of posts she considers to be direct copies of her own content. For those who don’t have a (mild) social media addiction, the “clean girl aesthetic” is a minimalistic, neutral, and organised style. In a slightly more cynical evaluation, it has been described as “sad beige” – envisage an abundance of muted tones, sleek ponytails, and light, airy interiors, and you have the right idea.

When looking at the posts side by side, it is undeniable that Sheil’s posts are strikingly similar to Gifford’s; in addition to near-identical outfits and duplicate product recommendation lists (through which the women earn commission), there is symmetry in the placement of items, selection of fonts, and even tattoo designs. According to Gifford, these elements are “distinctive characteristic[s]” that consumers associate with her, and so Sheil’s content infringes copyright and appropriates her “trade dress” (the neutral colour scheme and her manner of speaking). In her argument, it is also alleged that users may confuse content from each influencer as “coming from the same source”.

While US district Judge Robert Pitman has dismissed claims of unfair competition, tortious interference, and unjust enrichment, the following elements of the lawsuit will proceed to the next stage: 

• Copyright infringement: Claims that Sheil had wilfully and intentionally replicated her aesthetic and product recommendations have merit;
• Trade dress infringement: Shiel’s alleged copying of branding, colour and styling could cause consumer confusion; and
• Misappropriation of Likeness: Allegations that Shiel imitated Gifford’s physical appearance, poses and voice are sufficient to move forward due to the potential to mislead users.

While there is clarity around what is required to repost another party’s content (always obtain the relevant permissions), there are blurred lines and subjective judgments around IP ownership where individuals create similar content – especially when such content is inspired by popular trends. On the one hand, if a creator curates a specific image that has mass appeal, it seems fair that they alone should profit. However, in a saturated market - #cleangirl has 727.6k posts on TikTok alone at the time of writing - can Gifford really prove that the neutral, beige aesthetic is owned by her?

While US law applies in this scenario, it’s also worth considering the 2015 ruling by French courts: while pattern or colour scheme that makes a creation distinctive may qualify for legal protection, this is not guaranteed. In this case, the court of appeal upheld that Zara’s imitation of Christian Louboutin’s red-soled shoe did not infringe the fashion house’s IP.  Due to the variation in price, the high street brand argued that there could be no proven risk of confusion. While the disparity between Zara and Chrisitan Louboutin is more blatant, it is possible that the courts may consider that, due to the sheer volume of “clean girl” influencers, a beige colour scheme cannot be deemed distinctive.

But, if the court does rule in Gifford’s favour, what does this mean for content creation? Many influencers have a global reach, and, if successful, the case may establish a legal precedent which forces a shift in personal branding. While it is hard to imagine that the likes of Molly-Mae Hague will suddenly seek to sue smaller influencers who are heavily inspired by her content (a sign that she is successful at her job), the power of aesthetic may become less convincing. That said, this does seem to also be about the copying of specifics post and content, as well as that of an aesthetic and personality.  

If the key to social media success is curating a lifestyle others wish to imitate, who can claim originality in a style or aesthetic that is replicated by millions?  Time will tell!