The “Sad Beige Lawsuit” and the Fight Over Social Media Influencer IP Rights

Can you protect a personal “aesthetic” or “vibe?” Social media influencer Sydney Nicole Gifford believes so, as she recently sued fellow social media influencer Alyssa Sheil in Texas Federal Court, in what is now known as the “sad beige lawsuit.”

Gifford and Sheil are both social media influencers who promote Amazon products over their respective social media feeds using a predominantly “neutral, beige, and cream aesthetic.” Gifford claims Sheil copies her “neutral, beige, and cream aesthetic” and “vibe” by replicating her photos and videos without attribution, which in turn has resulted in a loss of earnings. Sheil immediately sought dismissal of all Gifford’s claims, arguing, among other things, that it is impossible to steal an aesthetic or vibe of an individual. In November 2024, the court granted Sheil’s motion to dismiss in part but allowed the case to proceed on four of Gifford’s claims (i.e., violation of the Digital Millennium Copyright Act (“DMCA”), misappropriation of likeness, vicarious copyright infringement, and trade dress infringement claims). Notably, the court stated this lawsuit “appears to be the first of its kind,” and thus is sure to have far-reaching implications for influencers and businesses that engage in social media marketing.

Despite surviving the motion to dismiss stage, Gifford still faces an uphill climb. To succeed on her surviving trade dress claim, Gifford must establish that her trade dress is truly distinctive and recognized by consumers. This is no easy feat, and Gifford will likely have difficulty proving that her content, or beige “aesthetic,” is truly original. Countless social media influencers use similar style pallets and aesthetics.

Gifford is also likely to have trouble proving her copyright infringement claim. Copyright laws traditionally protect specific expressions, not personal brands. Gifford will need to demonstrate that Sheil’s followers infringed her copyrights directly by “accessing, downloading, interacting with, and or viewing” Sheil’s content that was similar to hers.

Gifford’s misappropriation of likeness claim will also require a heavy lift. Gifford will need to demonstrate that Shiel imitated her posts in such a similar manner that Gifford’s followers could recognize her identity as appropriated. Due to the lack of precedent on this issue, Gifford will have to argue in highly persuasive fashion why such laws should be broadly interpreted in her favor.

Gifford’s final surviving claim alleges a DMCA violation by Sheil. The DMCA was enacted with the purpose of protecting copyrighted content on all digital mediums and makes it unlawful to remove copyright management information (CMI), such as an author’s name or the title of a protected work. The DMCA is a powerful tool as DMCA takedown requests are regularly used by companies in the fashion industry to shut down competitors. Social media platforms, including Instagram, Facebook, and TikTok, have implemented mechanisms to report DMCA violations. Often, social media sites go so far as to remove the reported content to shield themselves from potential liability. If a user believes that their content was wrongfully removed, they can contest the removal and request that their post be reuploaded, but often, the damage is already done. The removal of content, whether valid or not, impacts content visibility and earning potential. Accordingly, a broad interpretation of the DMCA to include materials not limited to identical content would almost certainly result in more content removal and a substantial increase in DMCA violations.

Here, Gifford alleges that Sheil violated the DMCA by intentionally creating and posting essentially indistinguishable social media content as her own without attributing or crediting such content to Gifford. In response, Sheil argues no DMCA violation took place because she did not reproduce or alter an identical image created by Gifford, and that her social media posts are distinguishable. The court held, to the surprise of many, that Gifford sufficiently pled a claim under the DMCA. While the DMCA doesn’t include the word “identical,” some courts require identical works to proceed with a DMCA claim. Because of the varied interpretations of the DMCA, a circuit split could emerge over whether the “identical” requirement is needed to constitute a DMCA violation.

For digital marketing influencers and businesses, the “sad beige lawsuit” will have a long-lasting impact on their business. A ruling in favor of Gifford would reshape intellectual property laws and directly impact content creation and social media influencer marketing moving forward. While it may provide more protection to social media influencers’ personal brands, content creators will have to use more caution before posting such content to avoid DMCA takedowns. Looking forward, those involved in the digital content industry should seek copyright registration for their content to ensure they have sufficient intellectual property rights, make efforts to establish distinctive brand elements, utilize copyright detection tools, and avoid the use of other creators’ trademarked names or logos. By taking such efforts, they will protect their brand, business, and “vibe” well into the future.

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