Federal District Court Adopts Problematic “Vibe Copyright” Protection in Influencer Fight

In the case of Sydney Nicole vs. Alyssa Sheil, a federal district judge ruled that certain vibes and aesthetics can be protected under copyright law. Weintraub attorneys Scott Hervey and Tara Sattler break down this decision and what it means for content creators and brands in the digital age on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Scott:
In December of last year, we talked about the report and recommendation of a magistrate judge that would hold that a vibe or a look could be protected under copyright law. That report was adopted by the district Court for the Western district of Texas. So, it seems, at least in the Western district of Texas, that copyright law extends to protection of ideas, concepts, or general styles. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, I’m joined today by my partner, Tara Sattler.

Given the adoption of the Magistrate Judges recommendations, we are going to discuss the potential implications of this case, Sydney Nicole versus Alyssa Sheil, on the creator marketing industry on this installment of the briefing. Tara, welcome back to the briefing.

Tara:
Hi there, Scott. Always great to be here.

Scott:
Good to have you again, Tara. I think this is going to be a real interesting discussion here. As a quick recap, this case involved a dispute between Sydney Nicole, a content creator, and Alyssa Sheil, another creator, accused of copying Nicole’s online content. Sydney Nicole alleged that Sheil’s work closely mimicked her original content, including the themes, style, and presentation of her videos. However, she’ll argue that she was merely drawing on a general model and idea and concept that copyright law has traditionally deemed unprotectible. Namely, this Clean Girl look, a very popular look among content creators and the creator marketing community. Adopters of this look include the likes of Hailey Bieber, Bella Hadid, Selena Gomez and Kim Kardashian, to name just a few.

Tara:
The federal magistrate judge issued a report and recommendation, which was later adopted by the district court, siding with Nicole. The ruling found that Sheil’s content bore sufficient similarity to Nicole’s protected expression rather than just her general ideas, effectively expanding the scope of what might be considered copyright infringement in the digital content space.

Scott:
So we’re not going to analyze the decision itself. For that, I recommend our listeners check out our previous episode on this case back in December. We’re going to put a link in the episode description to make it easy for you to find. What I want to talk about today are the critical issues for content creators and brands and the broader creator economy because of this case. So The first thing I want to talk about is that the finding of this case potentially blurs the line between protecting expression and protecting ideas.

Tara:
I definitely think you’re right, Scott. One of the foundational principles of copyright law is that it protects the specific expression of an idea, but not the idea itself. However, this ruling raises concerns that court may be moving towards an approach that grants de facto protection to certain creative concepts, especially within digital content creation.

Scott:
That’s right. The similarities in this case were largely thematic or conceptual. I think there’s a chance that this decision risks chilling the very creative development that copyright law has meant to foster. Creators often build upon common trends and esthetics and industry norms, and if those elements can be locked down as protected expression, it could deter new entrance and limit creative evolution.

Tara:
That’s right. This case could also open the door to secondary liability for brands that work with influencers. If an influencer unknow post content that closely resembles another creator’s work, there is a distinct possibility that brands that sponsor or collaborate with those creators could be held secondarily liable.

Scott:
Yeah, I can certainly see that under a theory of vicarious liability. So vicarious liability is generally found where the defendant has the right and ability to control the infringing activity, and the defendant derives a direct financial benefit from the infringement. So for example, where a brand hires or contracts with an influencer to create content, and that brand has the ability to review or direct that content, the brand might be found vicariously liable if the influencer infringes somebody else’s vibe and the brand benefits from it, which they will be deemed to because this is an advertisement.

Tara:
Courts have historically been cautious about extending liability in such cases. But as influencer marketing becomes a dominant advertising strategy, we may see an increased focus on due diligence and compliance by brands to avoid potential legal entanglements.

Scott:
Beyond the legal risk, this increased exposure to liability could also slow the growth of brand spend within the creator economy. If brands fear legal consequences, they may reduce investment in influencer partnerships or ship their budgets to lower risk advertising channels. Additionally, companies may impose stricter content review processes and demand more extensive indemnification clauses and contracts, which could make influencer deals more complex more time-intensive, and less attractive, particularly for smaller creators. In addition to potentially stifling brand spend, this decision could potentially stifle competition in the creator economy.

Tara:
I agree. The creator economy really strives on iteration, remixing, and reinterpreting of popular trends. This decision could make competitors wary of engaging in common industry practices out of fear that their work might be deemed infringing. If courts begin interpreting copyright law in a way that grants broader protection to influencer-driven content, it could discourage new creators from entering the market and inadvertently strengthen the position of already established influencers.

Scott:
Less competition within the creator economy could lead to a less diverse and not so innovative content landscape. New and smaller creators may struggle to gain traction if they fear illegal consequences for inadvertently producing a similar vibey content to an existing influencer. This could concentrate marketing power among top influencers who, having more resources, are better positioned to assert and enforce their copyright claims, even if those claims are nebulous.

Tara:
However, there could be some potential benefits for certain groups. Established influencers and content creators might benefit from increased legal protections that shield their work from being copied in the future.

Scott:
True, but this would come at a cost which creates a huge barrier to entry and also would artificially inflate the cost to advertisers. If there are only a handful of creators that would be able to emulate a specific look or vibe, naturally, the cost to work with those creators would increase substantially. Ultimately, while the ruling might provide some advantage for market leaders, it risks stifling creativity and competition, making it harder for emerging creators to build their presence in the industry and making it tougher for emerging brands to use creator marketing to expand their market share. I also think that this case could result in an increase in copyright litigation among influencers. With the rise of social media content creation, this case might embolden more influencers to file copyright claims against their competitors. Could this Can we create an environment where disputes over content style and approach become more litigious rather than fostering creative competition? I mean, we’ve already seen it in this case.

Tara:
Yeah, we have, and I agree. It or not, we all know that litigation is a business strategy, and if it makes economic sense to use litigation to whittle down the competitive landscape, more litigation is probably going to come.

Scott:
I agree. As lawyers, we are very much in favor of helping our clients use the law to advance their business endeavors. I mean, that’s what they hire us to do. This finding by the district Court is precedent, at least within the Western district of Texas, and it would be 100% acceptable for any influencer to protect his or her rights and business interests in line with this decision. Let’s talk about how this case might have an effect on platform moderation policies. If more courts begin recognizing this broader form of copyright protection for digital content creators, platforms like YouTube, Instagram, and TikTok may need to revise their copyright enforcement policies. This could lead to stricter takedown policies and increased content takedowns. This could also mean more aggressive use of automated copyright filters, which could result in faster and broader removal of content flagged for infringement and less room for creators to dispute takedown claims before their removal.

Tara:
You could also see stricter algorithmic policing. Ai-powered copyright detection could become more sensitive, leading to more false positives where non-infringing content, for example, fair use or independently created materials, get flagged and removed.

Scott:
That’s right. I could also see platforms expanding the use of content fingerprinting technologies, which could prevent certain styles, esthetics, or trends from being used across multiple creators, even if they are not directly infringing. This could result in preemptive blocking becoming more common where content is not even published if it triggers copyright algorithms.

Tara:
All of this really would have a chilling effect on competition within the greater economy. It will be harder for creators to establish originality, and even where they can, the smaller creators who lack legal resources could It can be disproportionately affected as they may struggle to dispute automated takedowns.

Scott:
Let’s wrap this up. While this case does not set binding precedent beyond its jurisdiction, there’s a question as to whether or not this is a signal of a potential shift in how courts are now going to analyze copyright disputes in the creator economy space as it may address a esthetic or a vibe. As litigation over digital content continues to grow, creators and brands alike are going to need to pay close attention to how courts balance the need for protection with the imperative to keep creative industries dynamic and competitive. Lawyers like us who advise both brands and content creators within the space are going to have to be aware of this decision and counsel our clients on how to avoid potential liability, and frankly, avoid being the defendant in a lawsuit alleging copyright infringement where the content allegedly infringed is an esthetic or a vibe.

Tara:
Yeah, that’s absolutely right, Scott. I think the conversations between brands and creators that already exist about approvals over content and direction given by the brand to the creator are only going to deepen when these types of precedents start to get set because both sides have higher stakes and more worries than they did before.

Scott:
Yeah, I agree. We’ll see if this decision goes up on appeal, but until it does, it is at least precedent within the Western district of Texas. Who knows how other courts might view this decision. We’ll definitely need to have our eye on this ball and advise our clients of this potential risk. Thanks for joining me today, Tara.

Tara:
Absolutely. It was great to talk to you about this one, Scott.

Scott:
Well, that’s all for today’s episode of The Briefing. Thanks to Tara for joining me today. Thank you, the listener or the viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.