Sidney Nicole LLC v. Sheil

In “first of its kind” dispute involving one social media influencer accusing another influencer of unlawfully copying her posts promoting same products, district court held plaintiff plausibly alleged claims for vicarious copyright infringement, violation of Digital Millennium Copyright Act and misappropriation of likeness, but dismissed her remaining state law causes of action for failure to state claim.

Sydney Nicole Gifford and Alyssa Sheil are social media influencers who promote the same Amazon products through curated lists and social media posts. Gifford claims she created and has used a “neutral, beige and cream aesthetic” as her “brand identity” when promoting these products. Sheil allegedly replicated this aesthetic in at least 60 social media posts promoting the same products.

Gifford sued Sheil in the U.S. District Court for the Western District of Texas for eight causes of action: direct copyright infringement, vicarious copyright infringement, violation of the Digital Millennium Copyright Act (DMCA), trade dress infringement, misappropriation of likeness, tortious interference, unfair trade practices and competition, and unjust enrichment. Sheil moved to dismiss all but Gifford’s claims for direct copyright infringement and trade dress infringement.

Adopting a magistrate judge’s report and recommendation, the district court held that Gifford plausibly alleged each of the three elements necessary to state a claim for vicarious copyright infringement. First, Gifford plausibly alleged that third-party viewers and followers of Sheil’s posts engaged in direct copyright infringement each time they viewed or accessed her posts. The district court reasoned that, as to the second element, Sheil had the “right and ability to supervise” that infringing conduct because she could have filtered or blocked the social media users who access her posts. Third, Sheil likewise had a direct financial interest in the infringing activity because more social media views and engagement resulted in higher sales commissions for her. In discussing this claim, the recommendation noted that “[a]lthough it does not appear that any court has addressed whether a social media user has the ‘right and ability’ to supervise their viewers or followers,” there was precedent that “[t]he ability to block infringers’ access to a particular environment for any reason whatsoever” was sufficient to establish “the ‘right and ability to supervise.’”

The district court held that Gifford plausibly alleged a claim for violation of the DMCA. Sheil argued Gifford failed to allege the existence of Copyright Management Information (CMI) in connection with Gifford’s social media posts and that Sheil did not copy or distribute any copyrighted works because she did not “reproduce identical images.” The district court held that a social media name or username constitutes CMI and that an image need not be identical to create liability under the DMCA. Because Sheil allegedly copied similar images (“indistinguishable,” according to Gifford) and did not include Gifford’s name or username, Gifford stated a plausible claim under the DMCA.

The district court held that Gifford also stated a plausible claim for misappropriation of likeness under Texas law. Gifford alleged that Sheil imitated her “outfits, poses, hairstyles, makeup and voice” and “pass[ed] herself off as Gifford” in such a way that Gifford’s social media followers could identify her. Although Sheil did not use Gifford’s “actual image, name or voice,” that omission was immaterial because a misappropriation claim may be based on the unauthorized use of “an aspect of that person’s persona in a manner that symbolizes or identifies the person.” In this case, the court agreed that Sheil created a “virtually indistinguishable replica” of Gifford’s likeness. The court rejected Sheil’s argument that no financial benefit could be derived from the use of Gifford’s likeness as it had no “intrinsic or unique value,” citing precedent holding that “[i]f a defendant appropriates a plaintiff’s name or likeness for his own commercial advantage, he necessarily derives a benefit from its use.”

The district court concluded that Gifford’s remaining state law claims failed on the pleadings. Gifford did not allege, as required to state a claim for tortious interference, that Sheil’s posts “caused any breach to [Gifford’s] contract with Amazon or that Sheil intended to cause such a breach.” The Copyright Act preempted Gifford’s claims for unfair competition and unjust enrichment because those claims “fall within the same subject matter” as the Copyright Act and do not include “any element that renders different in kind” those causes of action from one for copyright infringement.

Summary prepared by Melanie Howard and Keane Barger.