Can a vibe be intellectual property? A Minnesota-based influencer says yes in lawsuit

NINA MOINI: Well, a first of its kind legal battle is playing out between two Amazon influencers. Minneapolis-based influencer Sydney Nicole Gifford claims in a lawsuit that Texas-based influencer Alyssa Sheil won't stop copying her. The two influencers make very similar content and have a very similar look. Here's a clip of Sydney and Alyssa selling what appears to be the exact same sweater.

SUBJECT 1: And an off-the-shoulder sweater, very soft sweater material, not scratchy at all-- this is a very cozy. And this is why I spend all my money on Amazon. Everything is too freaking good.

SUBJECT 2: This is hands down my favorite sweater I've ever gotten on Amazon. It's the most gorgeous foldover off-the-shoulder sweater. It seriously just screams fall to me.

NINA MOINI: Just a little taste of what they're up to and how this lawsuit plays out could change the protections for influencers like them. This entire story was chronicled by reporter Mia Sato in the technology news outlet The Verge. And Mia joins me now on the line. Thanks so much for being here and sharing your reporting with us, Mia.

MIA SATO: Absolutely. Thank you for inviting me.

NINA MOINI: Yeah, this seems like such a new age whole situation that they're going through. I was like, a lot of people are making a living really being influencers. And that's their full-time job. And a lot of people might not have caught up to that that is going on in the sheer numbers that it is. So I'm curious, how did you start reporting on this story?

MIA SATO: So I actually saw a very short news article about this case months and months ago. And I cover tech companies. I cover people who make money in this way, influencer economy. And I found the case very interesting because while there are often accusations between influencers of this person won't stop copying me or this person is biting my style, it's very rare that it progresses to a federal court case, which is exactly what happened in the case between Alyssa Sheil and Sydney Nicole Gifford.

And so I found the case just fascinating in its claims. I found it interesting in the personal dynamic between the two women. And as you mentioned, I went and visited both. I spoke with legal experts. I spoke with another unrelated influencer just to get some context on the industry. And that's what just came out in my story last week.

NINA MOINI: Sure. And so tell us a little bit about Alyssa and Sydney's jobs as influencers. What all does it entail? Because it's their whole life, right? It's really a lifestyle.

MIA SATO: Yeah. This work pays for their life. And so Amazon influencers are kind of interesting. They promote products that are for sale on Amazon, and they might do that in the form of the few videos that you just played. They might do it in an Instagram post. But the goal of all of that content on TikTok, or Instagram, or X, or wherever it is, is to get people to go back to Amazon and purchase the items that they're promoting in their videos or photos.

So they'll often say things like, if you like this sweater, it's on my Amazon storefront. Go check it out. And then you click the link on their profile, and it has a whole page full of all the different items that these influencers are promoting. Every time you make a purchase from one of those links, they get a little kickback. It's like pennies on the dollar, 3%, 5%, 10%, maybe a bonus of up to 20%. But they make a little bit of money for each item that they move, each unit that they move.

And Amazon pays them. It's basically like a commission, like you're a salesperson and you earn a commission. And they told me that they pretty much only do this type of Amazon promotion. They might work with other brands here and there, but by and large, this is how they make their living. This is their job.

NINA MOINI: Yeah. And so I'm curious if you can just summarize for people, what is actually laid out in Sydney's lawsuit against Alyssa? And then what is her response to these accusations?

MIA SATO: So the lawsuit is very wide-ranging, but I picked a few parts that I found were most interesting and perhaps most consequential to the industry. So I would say the biggest claim in the lawsuit is that Sydney says Alyssa is violating her copyright because Alyssa posts very similar looking photos and videos as Sydney.

And just for context for listeners, the type of photos and videos that the women are posting I would describe as generic. There's one big thing, which is they both-- their lives are pretty much just beige, cream, white, black, all neutrals. Every piece of furniture in their homes when I visited them were one of those colors. There's not a single thing in their house that was a different color. And the items they promote are also like that.

So Sydney is saying that Alyssa is violating her copyright when she posts similar photos of the same pots and pans, for example. And the images aren't identical. But there was one piece in the lawsuit that was cited where the same Amazon set of pots and pans were placed on a counter in a kitchen. And Sydney posted this photo. And then a little bit after she did, Alyssa posted a similar photo. And so there are pages and pages of examples where Sydney lays out overlap between their content.

And part of the claim is also that Alyssa was copying what items to promote shortly after Sydney would post something. So that is the copyright claim. And this is a very novel claim. This would significantly expand the law about what is protectable under copyright because these images aren't the same image. It's not like Alyssa took a screenshot of Sydney's photo and uploaded it separately. She just posted a photo that sort of reminds you of it or looks alike.

NINA MOINI: And so can you also explain how they even knew about each other. It sounds like from your article that they did briefly know each other and meet.

MIA SATO: They did, yes. Sydney, as you said, right now lives outside of Minneapolis, but she used to live in Austin. And back in 2022 and 2023, the two women, along with a third influencer friend of Sydney's, met up in person a few times. And they weren't best friends or anything like that, but they were both influencers. They were both working in this niche. And it was sort of like, let's meet up and maybe we can find ways to support each other.

And in Sydney's telling, and in the third influencer, who's not named in court documents, they both say that the meetings went well, that they thought everything was friendly and that nothing was amiss. Everyone was happy with how it went. But Alyssa says otherwise. She says that during these meetings, she felt iced out, maybe a little excluded. Maybe there were some comments that were passive-aggressive about her or her work.

And all three people agree on what happened next. Alyssa blocked Sydney on social media. And that is sort of where this case begins, is Alyssa blocked Sydney. Sydney doesn't think much of it. She wasn't too offended, she told me. But months later, she heard from followers that, hey, there's this other person promoting the same products as you, and her content looks just like yours.

NINA MOINI: And again, just a reminder for folks listening, it's like beige, white. There was a list of colors, and it was like shiitake, very white. It was a fun read, your article. But this is very serious to these women, as it's their livelihood. And copyright law is just notoriously subjective. So I'm curious with the experts that you spoke with, do they think that this case has merit or has a chance?

MIA SATO: It's interesting. The copyright experts that I spoke with largely said that the claims seem like a reach. Again, it's really beyond the scope of what copyright law protects. That said, the case is progressing. And it has made it this far. And it isn't out of the realm of possibility.

One expert I spoke to, Blake Reid, he described it as it might come down to a judge playing art critic, where they look at these two women's videos and photos and say, is there creative choices going on here? Is this protectable under copyright, where I can see you used a specific camera angle, or framing, or other sorts of creative expression?

And while this is sort of a newer industry, maybe we need more protection around it. We don't really know what will happen. But I think that if there are any influencers listening, I'm sure this is probably a familiar tale, where you feel like someone is taking what you have created or promoted or posted and using it as their own. Unfortunately, it's kind of a common thing that happens online in online spaces. The question is really, is this illegal? Is this violating anyone's copyright?

NINA MOINI: Yeah, so how could the outcome of the lawsuit then impact influencers and their work? Are you hearing from other influencers who might be watching this closely?

MIA SATO: Well, if Sydney, the plaintiff, prevails in this case, it could open the floodgates for many other lawsuits like this, where influencers and other content creators sue competitors who have a similar look and feel to what they post online. And like I said, on the copyright side, it would be a significant expansion of the law.

And I don't know that that's necessarily a good thing. As you said, it's-- and I speak about this in the story, but Sydney isn't the first one to post content that looks like this. In fact, both women are clearly very inspired by Kim Kardashian, which I talk about a little bit in the story. But her house looks exactly like this and has looked like this for years. So does then that mean Kim Kardashian can come and sue you because you have a similar looking house and post similar looking photos as her? You can see how it's sort of--

NINA MOINI: She'd be able to sue everybody, Kim K.

MIA SATO: Yeah, and I don't think we want that.

NINA MOINI: Yeah. You know what was striking to me, before I let you go? You said in your article that by the end of your reporting on this that your own social media feeds sort of turned beige, that it sort of started to impact your experience. I'm just curious, as a consumer and as a reporter covering tech, what was your takeaway from this story?

MIA SATO: I think the big thing that I sort of came back around to was the central human interest piece in the story. Did Alyssa really copy Sydney? Or is it true that she organically came to post this very similar content? And as I was mulling that over-- and I should say, too, I don't know anyone-- what's inside anyone's heart. They have to-- I can only go on what they tell me. But in my piece, I explore how that organic convergence could be true, that these two women are siloed in their online bubbles, where everything is beige and cream and that maybe social media algorithms have pushed them closer and closer to one another.

And I don't have any sort of-- I can't read anyone's mind, but I found that to be a really fruitful and interesting question to explore because I think that if it's not in this case, it's happening elsewhere, where social media algorithms drive us to post a very specific kind of content, doubly so if your money, if your life depends on your posts performing well. And so I think this is a very interesting case of there's a central lawsuit, but there are also all of these different forces pushing on these women and their work. And I hope that people will, even if they're not influencers or not interested in this industry, will read it and find some commonalities with their own experience online.

NINA MOINI: Fascinating reporting, Mia. Thank you so much for being here and sharing it with us. And we know you'll keep an eye on it, and we hope you'll come back and keep us up to date.

MIA SATO: Thank you so much. This was so fun.

NINA MOINI: Thank you. Take care. That was Mia Sato, a reporter for The Verge.