Survival of Influencer’s Suit Threatens More IP Takedown Fights

A federal judge’s decision allowing an influencer’s lawsuit alleging a stolen aesthetic to proceed will embolden content creators to be more aggressive filing takedown requests against competitors, attorneys say.

Judge Robert Pitman last week refused to dismiss Sydney Nicole Gifford’s claims that Alyssa Sheil’s “replicated” photos and videos misappropriated Gifford’s likeness, induced others to infringe her copyrights, and violated a federal law meant to prevent the illegal distribution of protected works online. The court overruled Sheil’s objections to the likeness and Digital Millennium Copyright Act claims, surprising intellectual property attorneys who said they found Gifford’s allegations shoddy.

The two creators have been duking it out the US District Court for the Western District of Texas since April, when Gifford accused Sheil of copying her minimalist, beige aesthetic. The case raises novel questions about the application of IP laws to the growing social media creator industry, opening the door to a deluge of copycat suits from influencers if Gifford’s claims ultimately succeed.

“Decisions like this will make folks feel empowered,” Haynes Boone partner Joe Lawlor said. “Other creators could see the success of this suit and file takedown requests against competing creators” and lead to “influencers being more aggressive,” he added.

Flood of Takedown Requests

The DMCA makes it unlawful to intentionally remove copyright management information, including author names and titles of protected works, or to falsify such information. Social media networks, including Meta Platforms Inc.'s Instagram and Facebook, and TikTok Inc., allow users to report DMCA violations, like a user posting a copyrighted photo without permission, and often take down content to shield themselves from liability.

Gifford alleges Sheil violated the DMCA by intentionally creating posts indistinguishable from hers and publishing them without crediting Gifford. Sheil argued her creation of new works based on copyrighted posts doesn’t constitute a DMCA violation because Gifford must allege she reproduced or altered an identical image, and her content is distinguishable.

Pitman rejected Sheil’s argument a DMCA claim requires identical copies of the works. The report and recommendation he adopted cited a decision from the Southern District of Texas that declined to dismiss a DMCA claim based on a party’s use of copyrighted training material to create a new presentation, even though it changed the colors of graphs and sizes of charts.

Not all attorneys agreed with that interpretation.

The order and cited case “just gets it wrong,” said Mark Lerner, a partner at Duane Morris LLP.

While the DMCA doesn’t use the word “identical,” he said the law is meant to address a circumstance when copyright management information is removed “in order to facilitate copying.”

Other courts have found an identicality requirement, Lerner said, and Pitman’s interpretation broadens what qualifies as a DMCA violation.

“If you pixel for pixel or line for line copy the work, and that’s the way in which you strip out the CMI, I can understand the basis of her claim,” Lerner said. “But merely this kind of claim where you’re saying, ‘Well, that work feels substantially similar and you had access,’ that to me just doesn’t feel like what’s intended by the DMCA.”

Danielle Garno, a partner at Holland & Knight LLP, said she’s seen companies in the fashion industry use the DMCA to shut down competitors.

“You could just claim that you have a copyright in a design because copyright is created once the item is created, and the platforms will just basically take it down,” she said. Though the alleged violator has an opportunity to oppose the takedown request, “you can do that until you basically trigger the algo and they shut down the competitor.”

Creators armed with a broader interpretation of the law could wield it in the same way, she said. Even if some courts don’t require identicality, Garno noted all DMCA takedown requests she’s seen have involved identical copies.

The DMCA risks are a problem for the creator economy, said Amanda Schreyer, an attorney at Morse, Barnes-Brown & Pendleton PC. On YouTube, for example, she said users’ content gets taken down all the time and that can “really mess with your analytics even if it’s not valid.”

Litigation Fallout

Litigation costs may dissuade creators from bringing IP lawsuits, Schreyer said. But she pointed to law firms whose entire business model is sending demand letters and filing copyright infringement suits, and they often use tools to scrape the internet for clients’ photos to facilitate those practices. They’ve been labeled by some as “copyright trolls” because of their prolific litigation strategy.

Those firms could be encouraged by Gifford’s early success, alter their tools to identify similar photos, and go after defendants like Sheil, Schreyer said.

“If there was an AI bot that could look for all photos with brown-haired women in beige houses with beige jumpsuits, and then see how many points are close, and then send out demand letters, that could increase those kinds of suits,” she said.

A circuit split could emerge over varied interpretations of the DMCA, Lawlor said, and “platforms will have to be attuned to that.” In that scenario, he said some platforms will probably go with the most conservative approach.

Gifford’s suit has only survived the motion to dismiss stage, all of the attorneys noted, and her claims may still have to face summary judgment and a trial.

“The question is whether, at the end of the day, she’ll be able to prove these claims,” Lerner said. “I still have my doubts about that.”

The case is Gifford v. Sheil, W.D. Tex., No. 24-cv-00423, order filed 12/11/24.