Beige, don't kill my vibe

0:03Two influencers, both alike in dignity and some other stuff, on the internet where we lay our scene. Let's talk about all of my favorite basics from Amazon that you need in your winter wardrobe. Some people think this is weird, but I get all my clothes on Amazon. This is what I would buy if I didn't already own them. I just got in a bunch of super cute packages from Amazon, so let's open them up. Their aesthetic is beige. It's serene. It's a little basic, on purpose. And now, one is suing the other for stealing her vibes. There's a lot of things going on in the actual suit, But what it boils down to really is one of the women, Sydney Gifford, says that the other woman, Alyssa Sheel, just won't stop copying her.

0:50Coming up on Today, Today Explained.

0:59You're listening to Today Explained. I'm Noelle King with Mia Sato. Mia writes about tech companies for The Verge. She broke the story of the Sad Beige Influencer lawsuit, and she begins with the accuser, Sydney Gifford. Sydney Gifford is 24. She lives outside of Minneapolis, Minnesota, and she is incredibly successful at this job. She has hundreds of thousands of followers on Instagram and TikTok. She makes videos that get millions of views, tons of people commenting, saving, presumably buying things from her clips. New Amazon home finds for your kitchen. This set of stone coasters, this dish mat, these stemless wine glass chillers, and these cotton kitchen towels are perfect to have around.

1:43Shop all on my Amazon storefront. And this is how she makes a living. This is pretty much her only job. And she's specifically an Amazon influencer because she told me that she really doesn't do other brand deals that much. She just has this partnership with Amazon. I get literally all my clothes from one place and it's Amazon. I stopped into Skims this weekend, then immediately placed an Amazon order so we can really compare. Oh my goodness. You're telling me I spent how much on Skims? Amazon has just gotten really good at this. She's part of their influencer program, where every time you make a purchase from one of her special links with sort of tracking information in an affiliate link, every time you make a purchase from her links, she earns a little bit of money back.

2:25So many good deals right now, y 'all. Even more on my Prime Day page. So many more things are on sale. I could go on forever. I have a whole list on my storefront of wardrobe essential deals that you absolutely need, but those are my favorite. And now think about scaling that to like millions and millions of viewers who are looking for whatever, you know, crap to buy. And it's a pretty, pretty sweet job.

2:50And what does Sydney Gifford say that the other woman is copying? Sydney says that Alyssa is copying her vibe, basically. That's what it really boils down to, her vibe, her look, her feel, aesthetic. And there are a couple different prongs of the sort of copying allegations. One is Sydney says that Alyssa has copied what her videos and photos look like, the aesthetic, the sort of look and feel, the pacing, maybe the editing. You've copied my videos. You keep making the same videos that I just made a few days ago or a few weeks ago. So that's one thing. The other thing is, you keep promoting the same Amazon stuff as I do.

3:32Oh. If you're not getting all your bags on Amazon, you need to see this. Let's talk about all of my favorite fallbacks from Amazon. I do own one Bottega bag, and the way that all of these feel and look are so comparable. Inspired by Bottega for a fraction of the price. Even the hardware has a good weight to it, like I would expect with a designer bag. I adore the shape of this bag and all of the gold hardware. I found some of the best woven bags on Amazon this year. You know me, you know how much I love a woven leather bag. The additional allegation is that not only did you copy what my content looks like, you copied what I look like.

4:04You changed your appearance and people are getting us confused. Oh, my God. OK. Wow. All right. So this is this is more dramatic than even I had realized. What is the aesthetic that Sidney Gifford is saying the other woman copied? Okay, so imagine a house that is black, white, cream, beige only. You look around, there is literally not a single thing in your sight that is a color other than that. Everything is like this. Everything is smooth, clean, sort of it almost feels like a dream, like a cloud. These are both of their homes. I went to both of their houses. And I visited Alyssa first, and I was struck by the neighborhood that she lived in because it was all like tan.

4:49Then I stepped into her home, and it was silent and completely white. Just everything was beige and cream and white and a little bit of black. And it is this aesthetic that has come to be known online as, quote-unquote, clean girl. You know those girls that always look clean? Their skin is always glowing, their lips are always glossed, and they never, ever look like they're wearing too much makeup? We may not be them, but here's how to get their look. Clean girls have these beautiful, long, sort of smooth hair. I have never been able to dry and style my long and thick hair so fast and easily, especially with only one tool.

5:29Sometimes it's down, sometimes it's in a tight bun, slicked back bun. They wear gold jewelry. There's some of my Amazon bracelets that I absolutely swear by. They're so gorgeous, lightweight, and I just love the way they sparkle. This is my current necklace stack. I never take these off. They wear also beige, cream, white, black clothing. They wear, you know, chunky sweaters or oversized sweatsuits. They have beautifully manicured nails. This is the sort of vision of luxury that a lot of people look up to right now. Okay, so lest our listeners think there are no stakes here, these women are actually making money from their presentation on video, the aesthetic that surrounds them.

6:13Like, this is actually what they do for work. Yeah. And it pays for their life. And what Sidney's claim is that the copying wasn't just like annoying, which maybe a lot of people would feel that's where it ends. It also cut into her earnings. She says that she didn't sell as many Amazon products as Alyssa was copying her, allegedly. She says that she didn't, you know, gain the same amount of followers that she would have because perhaps they were following Alyssa instead. And the sort of claim about, you know, you copied what I look like, that feeds into that where Sydney claims that because Alyssa copied how she looks, people were getting the two women confused.

6:55People were thinking that Alyssa was Sydney and then perhaps buying things from her links instead of Sydney's links. Does that make sense? Yes, it does. And now you have made me wonder whether or not they know each other in real life. So that's the crazy thing they do. They have met each other. Sydney used to live in Austin, where Alyssa currently resides. And in 2022 and 2023, the two women, along with a third influencer friend of Sydney's, all met up in person twice. And the meetings were kind of supposed to be like, how can we support each other? How can we support our businesses? You know, we work in the same field.

7:37We make the same kind of videos. So maybe we can just, you know, be friends or be friendly. Cool. And after the second meetup, Alyssa told me that she felt kind of excluded from the other women. Like they were maybe making passive aggressive comments to her. One thing she says was they were quizzing me on my strategies on social media. Huh. And Alyssa ends up blocking Sydney on social media. Now, Sydney was surprised and kind of confused by this because she thought the outings had been great, right? She thought everyone was on good terms. Everyone was friendly. But she kind of, you know, took a moment and wasn't too offended by the blocking because, as she told me, living your life online is not easy.

8:21Sometimes you compare yourself to other people and it can be mentally draining. So she was like, you know what? Whatever. I'm just going to keep doing my job. And something like 10 months after the blocking, followers of Sydney's started to come to her and say, hey, there's a woman who's making content just like yours. And I actually thought she was you until I looked at the name. And that woman was Alyssa, this person that she had met a few times and had had this encounter with.

8:51Okay, so it's at this point that Sydney decides I'm going to sue. and what is the content of her lawsuit? So first, Sydney takes all of her social media posts and registers them with the copyright office, which is a pretty rare thing for influencers to do. It's not really a normal thing. So now she has all of her posts. She can start sending cease and desist letters to Alyssa. She hires an attorney and says basically, you know, your content is infringing on my copyright. Like, you need to stop this. And this goes on for a little bit before the actual suit is filed. That happened last spring. And the suit has a lot of different things in it.

9:34There is obviously what we just talked about, the claim that you making similar videos and photos, though not identical, similar content is infringing on my copyright. That's a novel claim. What does Alyssa say in response to this? Is she taking it seriously? Absolutely. I think she was shocked when she learned she was being sued. She denies ever copying Sydney. She says, I didn't even think about this person until I had started getting these cease and desist. I was not copying her. On the claim that they look alike, I should note that Sydney is a white Hispanic woman and Alyssa is a black Latina woman.

10:16And so Alyssa's legal response to this claim is, well, we don't look alike. We are two different races and nobody could confuse us. So there's a whole different, you know, Alyssa basically is saying like everything that I'm doing is totally legal and fine. And moreover, this is just the way that influencer content looks. this is the genre of clean girl these are sort of the tropes of that genre and nothing either of us are doing is unique i thought that was a really funny response like both of us are basic yeah both of us are basic and a lot of people online i mean i've seen these videos of them and of others a lot of people online are basic it's it's an aesthetic right an aesthetic can't just be one person doing it, because if it is, then it's not an aesthetic.

11:08It's like, oh, that girl's got good style. But nowadays, everybody online is copying everybody else, whether it's like using someone's dance or their song or their clip or their meme. And then other people are just going to use it and repeat it and mess with it a little bit around the edges. How big could the implications be here if Sydney were to win? So if Sydney were to win, it would be a pretty significant expansion of copyright law. Because suddenly, it's not just about these images being identical, it's that you ripped off the vibe, the feel of my photos and videos.

11:49The reason the story was so interesting to me is that it's actually like truly unclear to me what is happening here, what the truth is. I don't know. And I have gone through the process of reporting and writing it. I've sort of landed in different places. But one thing I keep coming back to is that it's really hard right now in our media ecosystem to understand how we are implicitly being influenced by algorithms that we don't understand, that we don't have insight into. who's to say that Alyssa wasn't just pushed towards this content because this is the type of content that she sees on her feed all the time and that is what she's emulating.

12:29So there's a lot of interesting questions around really like the artistic nature of influencer content and also how algorithms mediate all of the things that we post on the internet.

12:42That was The Verge's Miyasato. Coming up, everybody's getting a lawyer, so we are too.

13:00See you next time.

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13:27This is Today Explained. My name is Alex Roberts. I am Professor of Law and Media at Northeastern University. How carefully are you following the sad beige influencer lawsuit? I'm following it pretty closely because it is right up my alley, to be honest with you. So I've written about influencer marketing, and I teach courses on trademark and entertainment law and intellectual property law. So this is all my jam. Okay, so Sydney Gifford is suing Alyssa Sheel, claiming that Ms. Sheel is copying her. And this lawsuit is real and it is progressing? It is. So Gifford brought this lawsuit in April of 2024.

14:09So her causes of action in the complaint include copyright infringement, trade dress infringement, unfair competition, interference with contract, misappropriation of right of publicity, and more. To many experts, I think these claims seemed like overreach with very little chance of success. But Scheil moved to dismiss six of those eight causes of action. And kind of surprisingly, a magistrate judge in November declined to dismiss four of those challenged claims. And then in December, the supervising district judge adopted the magistrate's report and recommendations. So that doesn't mean Gifford wins on those claims, but it means the judges believed that she adequately pled them.

14:50So at this stage, they can't be ruled out and the case can go forward. Are you surprised by that? I am surprised by that. Okay, tell me why. There's a lot out there, a lot that content creators are making, particularly when it comes to Amazon recommendations, particularly when it comes to this kind of clean girl aesthetic and this sad beige, you know, certain tones and colors that people are using. A lot of it is really similar. Here's your step-by-step guide to becoming an elegant, classy clean girl. The first thing I want you to do is pick a signature fragrance. This is one of my favorite products for achieving the clean girl makeup routine.

15:26It's this Rare Beauty Eye Brotner. It's amazing, and it replaces all my concealers. I personally think that gold jewelry gives off more clean girl than silver, but any, like, clean jewelry stack, clean girl, definitely. And the idea that there's something protectable here under intellectual property law is somewhat surprising. Of course, photos are protectable, and audiovisual content is protectable, and Gifford actually registered copyright in those things. But the argument that what Shia is doing actually infringes those copyrighted works seems like a stretch to me. And likewise, the trade dress claim, I mean, it's really going to be challenging for her to actually establish trade dress protection for kind of her color scheme and her general style.

16:15I was just looking at the amended complaint, and she talks about, like, her way of relating to her followers and her tone of voice. That's not usually what trade dress law protects. And then lastly, misappropriation of right of publicity. I mean, that's usually like when a company takes a celebrity's name or photo and uses it in an ad without their consent. There you have a strong claim for right of publicity. But here she's saying essentially, you copied my look. You dressed like me. You did your hair and makeup like me. You paired similar earrings with a similar outfit and white cowboy boots.

16:53And that's a use of my image or my persona. So that seems a little outside of what the law protects. But these cases are unpredictable. OK, the cases are unpredictable. We think we know where this will land. Like the smart money says Sidney Gifford can't win. But if she does win, what could this change? It doesn't change what's actually copyrightable, right? Photos and videos are protectable. Longer text captions may be copyrightable, but short phrases are not. Curated lists can sometimes qualify for thin copyright protection. So a court would really need to find sufficient similarity here for infringement.

17:36If they do, I think the chilling effects are really tremendous. I think it leads to concerns by other content creators that they might be accused of copying somebody's content just because they're kind of following the same viral trend or creating similar categories of content. They might be accused of impersonating somebody's look just because they make similar choices in the way that they style their outfits. So when we talk about chilling effects, what we mean is speech is chilled. People are afraid to create new works, to do different forms of expression that might lead to claims of infringement.

18:17Right. Like imagine being scared to wear beige. I mean, listen, I don't I don't love beige, but but I've learned many women do. Imagine being afraid to get on camera and show your beige house because somebody might sue you for it because your house looks too much like her house. This is crazy making. So I think one difference between this case and some really high-profile copyright cases that we hear about, like in music, when you think about, you know, Blurred Lines and Katy Perry and Led Zeppelin or, you know, a case that Nike brings or something like that, typically those are defendants who are more well-resourced.

18:56They have a legal team. They have a label behind them. They have the ability to kind of put up a really robust defense and make their best argument. And when we're thinking about content creators at this level, we're usually thinking about somebody who's doing this as a side hustle or who's kind of trying to eke out a living, get some endorsements, get some paid promotions for their content, pull together a community, get some attention from followers. But they are unlikely to have the kind of resources that will let them fight back, that will enable them to say, this is actually non-infringing or it's a fair use or what you're claiming as trade dress is completely functional and unprotectable.

19:39So they're more likely to back down, they're more likely to settle, and frankly, they're much more susceptible to bullying. So what we see in the IP context is when you have some cases setting out precedent that liability might exist, people get really aggressive with their cease and desist letters. So they say, you know, this other influencer was just found or maybe found liable for copycat posts. And the same thing's going to happen to you. We're going to sue you next if you don't completely abandon this category of posts that you're making or cancel your account or whatever the demands are.

20:14I wonder whether or not the platforms bear any blame for these creators looking and sounding and talking alike and having the same vibe. Because if they're pushing stuff at you via an algorithm and you're seeing one person do it, you're seeing two people do it, you're seeing three people do it, you become the fifth or the sixth or the tenth. Like, has anyone ever looked at, okay, the platforms are serving me a lot of sad beige content and therefore they are responsible for me thinking, huh, sad beige, that's the way to do it? I think there's a philosophical question in there and there's maybe also a legal liability question in there, right?

20:51So making creators fight to be seen and followed, that doesn't imply any liability for copyright infringement. And all creators in all genres, in all kinds of industries have to compete for eyeballs and profits. Low barriers to entry in this field probably means there's a lot more competition, right? It's a lot easier to post an Instagram post than it is to make a movie. Yeah. If we're thinking about the Digital Millennium Copyright Act. A DMCA analysis might ask whether Gifford filed takedown requests with these various platforms. She's got a copyright management information claim, which argues that by creating similar posts without crediting Gifford's account, in essence removing Gifford's username from the works, Shile violates the DMCA.

21:36If she actually succeeds on that claim, which again seems a stretch, I wonder whether that might affect how platforms choose to structure things. Like could they decide they want to require or apply watermarks or something like that. And likewise, if a court agreed with Gifford that Shiles' followers infringed Gifford's works when they viewed or downloaded or screencapped Shiles' posts, that might have implications for platforms and potentially platform liability for infringement. If the parties settle or if Gifford prevails on some of her claims, really any of her claims, then we might begin to see more cases like this or see content creators lawyering up and sending cease and desist letters threatening similar suits.

22:30Alex Roberts. She's a professor of media and law at Northeastern. Hadi Mawagdi produced today's show, Amina El-Sadi edited. Andrea Kristen's daughter and Rob Byers are our engineers and Laura Bullard is our senior researcher. Today Explained is made by Victoria Chamberlain, Avishai Artsy, Miranda Kennedy, Patrick Boyd, Peter Balanon-Rosen, Miles Bryan, Amanda Llewellyn, and Travis Larchuk. Today, Sean and I and the rest of the team are saying goodbye to Halima Shah, producer, reporter, fill-in host, and full-time woman of mystery. Halima reported for us on everything from refugee resettlement to the promise of psychedelics to Brazilian butt lifts and stolen bees.

23:11She forever raised her hand to cover the most challenging stories, and then she did so with heart and humor. And we will all miss her. Hoc toi, girl. I'm Noelle King. It's Today Explained.

23:43Thank you.