Influencer Aesthetics Enters the Courtroom
Sydney Nicole Gifford, an online influencer with over 500,000 followers, filed a lawsuit against Alyssa Sheil, another influencer, claiming copyright infringement, trade dress misappropriation, and unfair competition. Gifford alleges that Sheil copied her images and likeness, as well as her signature aesthetic: a neutral-beige palette of creams and grays, her hairstyle and tattoos, her product styling on Amazon, and her overall presentation. Gifford argues that these elements collectively form her trade dress and that Sheil's imitation risks misleading consumers, diluting her brand identity, and diverting affiliate revenue.
This raises a novel question: can a “vibe” be protected under trademark and trade dress law? Social media algorithms amplify the issue, often recommending one influencer’s content immediately after another’s. If Gifford’s audience is funneled toward Sheil’s videos, confusion and lost sales may follow. What begins as imitation may, in the eyes of the law, amount to infringement.
Trade Dress and the Creator Economy
The creator economy is estimated to double from $250 billion in 2023 to $500 billion by 2027, according to Goldman Sachs. Influencers’ brands, including visual style, content curation, and audience engagement, are their commercial assets. Companies use trade dress law to protect packaging, store layouts, and product design; however, can it also be applied to preserve influencers’ personal styles?
The Role of Consumer Surveys
Gifford’s claims turn on whether social media users are likely to be confused. When consumer confusion becomes a legal issue, parties often use consumer surveys in their litigation strategies. Properly designed surveys can test whether viewers believe Sheil’s content is affiliated with, sponsored by, or endorsed by Gifford. They may also measure whether Gifford’s aesthetic is a distinctive indicator of her brand and whether consumers are making purchasing decisions as a result of the imitation.
Surveys targeting followers of lifestyle influencers or consumers in overlapping demographic segments can provide courts with objective evidence of how audiences perceive these aesthetics.
Creator Autonomy and Protections
Gifford dropped the lawsuit; however, it was initially regarded as potentially “first of its kind,” because it challenged the protectability of an aesthetic. When we see a more mature creator economy, we may witness more challenges emerge in the realm of personal branding. With sponsorships, affiliate revenue, and reputation at stake, influencers may seek legal remedies and protection of their intellectual property, and conduct consumer surveys as evidence to support their claims.
If you are involved in a trade dress or trademark dispute in the creator economy, IMS Legal Strategies offers litigation-tested survey research that can provide the evidence courts require.
