Starving Artists Newsletter, Vol. 22 - Can you Protect your Vibe?
The creator economy is valued at over $100 billion and growing. Creators have an incentive to protect their content and intellectual property, but protection under intellectual property law is still a gray area, or in this case a beige area. Sydney Nicole Gifford, a content creator and 亚马逊 influencer sued Alyssa Sheil in April for “stealing her vibe,” which has been nicknamed the “Sad Beige Lawsuit.”
The complaint specifically alleges intellectual property violations for trade dress infringement, copyright infringement, and counts for tortious interference and unfair trade practices.?
On December 10, 2024, the court dismissed majority of Gifford’s counts (including those for trade dress infringement, tortious interference, and unjust enrichment), but her claims for vicarious copyright infringement, copyright violations, and misappropriation of likeness remain.
What does trade dress actually protect??
Trade dress can protect colors, but the color must be specific. Tiffany & Co. has protected its signature blue color, and Mattel, Inc. has a specific shade of pink for #Barbie. When a color reaches a level of fame that it is consistently associated with a certain source, then it can be protected.??
Trade dress is also often used to protect the overall look or branding of a product. For example, Glossier has protection over its signature pink pouches.?
However, the trade dress protection only kicks in when the visual characteristic is so associated with the brand that it acts as an identifier to consumers. Unfortunately for Gifford, she would need a specific shade of beige so associated with her platforms that they are one and the same.?
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What about Copyright?
Gifford’s copyright claims survived the motion to dismiss because the copyright act protects works of human authorship that are unique and fixed to a tangible medium, which includes photos and videos. Before the suit, Gifford registered several of her posts for copyright protection. Since Sheil did not use Gifford’s photos without permission, Gifford must have a striking similarity between her own posts and Sheil’s “infringing” posts.?
Copyright law is meant to protect art and incentivize creativity. In her suit, Gifford is using copyright law to protect her revenue streams. If Gifford prevails, it could open a door to more creators trying to block competition using copyright law.?
prepared by Caroline Oyler
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Cannes-winning Copywriter | LinkedIn Ghostwriter | Creative Consultant
1 个月It's really interesting how the idea of "vibes" is making its way into legal discussions. Infringement of vibes sounds like a whole new world of copyright issues! Looking forward to reading your thoughts in the newsletter. Thanks for sharing your insights!