Can one creator successfully sue another for copying their vibes?
According to the “sad beige” lawsuit, probably not.
You may remember that last July, TikToker, Instagrammer, and YouTuber Sydney Nicole Gifford filed a first-of-its-kind lawsuit against fellow content creator Alyssa Sheil, accusing her of copying Gifford’s “neutral, beige, and cream aesthetic,” and posting content with “identical styling, tone, camera angle and/or text.”
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At the core of Gifford’s suit was an accusation that Sheil had committed both copyright infringement and trade dress infringement. The latter claim was particularly interesting, because “trade dress” refers to the bespoke look and feel of a product–like the shape of a soda bottle.
If a judge had ruled in Gifford’s favor, the decision could’ve opened the door for a lot more lawsuits from creators who feel others are copying their content’s aesthetics, from color-grading to caption style to ~vibe~.
But a judge never had the chance to rule. After filing against Sheil and requesting a jury trial, Gifford had three of her claims dismissed thanks to a motion put forth by Sheil’s attorneys, then ended up requesting to “nonsuit” her case–aka, not move forward with it, according to a statement from Sheil’s attorneys. Because of this, the remainder of the suit was settled in nontrial mediation, with no money exchanged and each party paying their own attorneys’ fees.
“It was a privilege to represent Ms. Sheil who fought to send a message and set a precedent that filing these kinds of cases will not pay off,” Thomas Frashier, an associate at AZA Law, said in a statement. “Ms. Gifford’s case was completely meritless, and it is no surprise she asked to give up. If the case had gone to trial, Ms. Gifford would have owed a significant amount of attorneys’ fees to Ms. Sheil.”
Frashier added that his team “had hard proof that Ms. Gifford’s claimed works were not original and her story simply was not true: for many of the alleged instances of ‘copying,’ Ms. Sheil actually took her photos and videos first.”
“I could have caved to Ms. Gifford’s demands, but this was a much larger fight and sets a precedent that young minority entrepreneurs will not allow ourselves to be bullied,” Sheil added. “Ms. Gifford attempted to intimidate me into leaving this industry. She failed miserably as the truth has prevailed today.”
Following Gifford and Sheil’s settlement, the District Court for the Western District of Texas, Austin, dismissed Gifford’s suit with prejudice, meaning she can’t refile it in a district court. (She can, however, submit an appeal to the Fifth Circuit, which is based in Louisiana.)
So what does this mean for the industry at large? We don’t have a statement from Gifford or her attorneys, so can’t know what her perspective is on the case, but from an objective standpoint, a decision to nonsuit usually means the plaintiff realized they didn’t have enough material to support their lawsuit.
Is that because creator v creator copyright/trade dress lawsuits will always fail, with 100% certainty? Not necessarily. But on social media, where everything is a flywheel of creators feeding and iterating off one another’s videos, jokes, memes, and soundbites, and where apps like TikTok provide a standard set of editing tools that can lead to lots of content looking samey, this kind of lawsuit does seem unlikely to ever succeed.
