As the New York Times recently reported, one online influencer is suing another, claiming she stole her “vibes.”

As the Times explains,

The oversize beige cable-knit sweater. The center-parted hair. The right knee pointed out, creating a curve at her left hip.

Practically every detail in the photo — right down to the matching short set — looked familiar to Sydney Gifford. So did the woman posed in front of the nondescript white wall.

Days earlier, Ms. Gifford, a 24-year-old lifestyle influencer, had shared a photo with her thousands of followers that was virtually identical. The woman in this new photo was a fellow influencer, Alyssa Sheil, with whom she had gone shopping and done a photo shoot months earlier.

Gifford, “who has about 300,000 followers on Instagram and more than half a million on TikTok,” suspected that the shopping trip had been a form of “aesthetic espionage.”

Gifford claimed that Sheil (21) both mimicked her online persona and “stole” her look.

Both women create and post social media content meant to encourage their followers to buy items – such as the shorts set — from their Amazon.com “storefronts.”

Gifford registered the copyright for several of her social media posts in January, after noticing Sheil’s similar posts. Although copyright attaches at the moment something is “fixed in a tangible medium” (such as posted online), registration with the US Copyright Office is required before the owner can sue for infringement.

The Times notes that

As the creator economy booms, teasing the possibility of a lucrative livelihood, Ms. Gifford’s case seeks to clarify the line where imitation may turn from flattery into forgery.

As Jeanne Fromer, a professor of intellectual property law at New York University told the Times,

There really is a sense that you’re both a creator and a borrower. Fashion is built on that. All the creative industries — painting, music, movies — they’re all built on borrowing in certain ways from the past and also ideally trying to bring your own spin to something. 

Gifford claimed that some of her followers confused Sheil’s content with her own. Gifford also said that she had noticed a dip in sales of items she posted when Sheil posted similar items.

Similar cases have had mixed results.

In a 2018 case, a photographer claimed that Nike had copied his photo of basketball star Michael Jordan to create the Nike Jumpman logo that it used in its Air Jordan campaign. The claim was dismissed after Nike showed that it had hired another photographer to take a similar photo.

However, in 2005 another photographer sued an ad agency for using a version of a photo he had taken of basketball star Kevin Garnett in a Coors Light ad. In that case, the photographer won after the court noted that “the ad agency had recreated the photo of Mr. Garnett through imitation of angle, pose, composition and lighting.”

The concept of infringement of trade dress rights is well-established – not in copyright law but under trademark law.

For example, in the case of Two Pesos, Inc. v. Taco Cabana, Inc. (a dispute between two Mexican restaurant chains), the court found that Two Peso infringed the trademark rights of Taco Cabana by copying the design of its restaurants.

Taco Cabana described the decor of its restaurants as “a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals.” The interior featured a “patio capable of being sealed off from the outside patio by overhead garage doors.”

The case made it all the way to the US Supreme Court, which held that a distinctive trade dress is generally entitled to protection under the Lanham Act (which governs trademarks) because a user of trade dress “should be able to maintain what competitive position it has and continue to seek wider identification among potential customers.”

Recently, artists have claimed that generative artificial intelligence (GAI) tools have infringed both their copyrights and/or trade dress rights by “creating” images too similar to those made by the artist.

For example, as Business Insider reported,

Greg Rutkowski is an artist with a distinctive style: He’s known for creating fantasy scenes of dragons and epic battles that fantasy games like Dungeons and Dragons have used…. [I]f you search for his name on Twitter, you’ll see plenty of images in his exact style — that he didn’t make.

This is because

Rutkowski’s name has been used to generate around 93,000 AI images on one image generator, Stable Diffusion — making him a far more popular search term than Picasso, Leonardo Da Vinci, and Vincent van Gogh in the program.

Rutkowski was removed from Stable Diffusion due to his opposition to AI use of his art, but AI generators have continued to use his style.

As artnet reported, artists have filed a class action copyright infringement lawsuit against three A.I. companies—Midjourney Inc, DeviantArt Inc, and Stability A.I.

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