Influencer Should Face Creator’s Vibe-Copying Suit, Judge Says

An influencer’s first-of-its-kind lawsuit accusing another creator of copying her Instagram, TikTok, and Amazon.com Inc. Storefront posts should move forward, a Texas judge said.

Sydney Nicole Gifford sufficiently alleged that Alyssa Sheil misappropriated her likeness and violated copyright law by intentionally creating content “virtually indistinguishable” from Gifford’s without referencing her name or username, Magistrate Judge Dustin Howell said in a report and recommendation docketed Friday.

The matter now goes to US District Court for the Western District of Texas Judge Robert Pitman for final disposition.

Gifford sued Sheil in April, alleging Sheil replicated her social media photos and videos, imitated her outfits and poses, and infringed her distinct trade dress, which Gifford described as the “promotion of products only falling within the monochrome cream, grey, and neutral-beige color scheme; styling of products in modern, minimal backdrops.”

Gifford brought eight claims: copyright infringement, vicarious copyright infringement, trade dress infringement, misappropriation of her likeness, tortious interference, unfair trade practices and competition, and unjust enrichment, as well as violations of the Digital Millennium Copyright Act. Sheil’s alleged infringement has caused Gifford to lose followers, user engagement, and sales commission, she said.

If the lawsuit succeeds, IP attorneys warned it could lead to a deluge of similar suits from influencers.

Sheil in June moved to dismiss all but the direct copyright and trade dress infringement claims.

The vicarious copyright infringement claim should advance because Sheil could be liable for the infringement of her accounts’ viewers since she has the ability to “police the content available on her platforms and who can access them,” Howell said.

Gifford’s likeness claim shouldn’t be dismissed because she adequately pleaded that she may be identified in Sheil’s posts, according to the recommendation. While Sheil insisted she didn’t use Gifford’s actual name, image, or voice, Howell held that argument raises a factual question not suitable at the motion to dismiss phase.

Gifford also sufficiently alleged that Sheil violated the DMCA by by creating posts “indistinguishable” from hers without citing her name or account, the recommendation said. Though Sheil argued she isn’t liable under the DMCA because she didn’t copy and paste images without the author’s information, Howell said courts in the Fifth Circuit have found that “the DMCA may properly apply even when the allegedly infringing work is not identical to the original.”

Howell recommended dismissal of Gifford’s tortious interference, unfair competition, and unjust enrichment claims because they’re preempted by federal copyright law or lacked sufficient factual allegations.

The Kumar Law Firm PLLC represents Gifford. Ahmad, Zavitsanos & Mensing PLLC represents Sheil.

The case is Gifford v. Sheil, W.D. Tex., No. 24-cv-00423, report and recommendation filed 11/15/24.