Social media pumps out trends that are ‘over’ as quickly as they arrive. Viral moments can dominate feeds one day and vanish the next. Our obsession with aesthetics is evident in the way we embrace trends like cottagecore, coastal grandmother, clean girl – to name a few. These trends come and go, with participation by hundreds, if not thousands, of users. 

One trend still going strong is the beige aesthetic. Some may say beige is basic, bland and even boring. But back in 2020, the beige aesthetic took over social media, from Kim Kardashian’s minimalist mansion to “sad beige” baby rooms. Today, influencers continue to embrace this neutral palette, with entire accounts devoted to everything beige. These influencers carefully curate their content to ensure everything from gadgets to home décor fit seamlessly into their beige aesthetic. However, with over 2.2 million posts tagged #beigeaesthetic on Instagram, is it really possible for one influencer to own the aesthetic? 

Texan influencer Sydney Nicole Gifford thinks it is. She has filed a first of its kind lawsuit against fellow influencer Alyssa Shiel, accusing Shiel of deliberately copying her aesthetic and brand identity to mislead followers and gain an advantage in the fiercely competitive influencer industry. Gifford says her distinctiveness lies in exclusively promoting monochrome and neutral-beige coloured products, styling them against modern, minimalist backdrops, featuring herself in the content, and using a ‘relatable’ tone when speaking to her followers. She also says Sheil has copied over 30 of her Instagram and TikTok posts, by replicating her outfits, camera angles, captions and even getting a similar tattoo, all in an attempt to confuse users and grow her following. At first glance, this might seem like an Instagram mini-drama, but if Gifford wins, the consequences could be anything but beige. 

How would a ‘vibe’ case play out in New Zealand?

Although the Gifford case will be decided under US law, just like the reach of influencers, legal trends are rarely confined by geographical borders. If the US court finds in Gifford’s favour, is it likely to start a new trend of influencer-led litigation in New Zealand? Probably not, but it could be a useful precedent in the right circumstances. 

Just like in the US, social media content like photos and videos can qualify for copyright protection in New Zealand. But the originality of the content will have an effect on the strength of the copyright protection. The more simple or common the content, the weaker the copyright position. Platforms like Instagram and TikTok are flooded with a sea of content showing neutral and monochrome coloured outfits and interiors, so even if Gifford could prove that her unique camera angles, colour schemes and styling create original works that qualify for copyright, proving infringement would still be challenging under New Zealand law. An entire Instagram or TikTok profile is unlikely to be considered a single copyright "work", so Gifford would need to prove each individual instance of copying. In her case, a series of over 30 very similar posts does indicate intentional and deliberate copying, but that is not the end of the story. Each copied post or reel would have to be objectively similar to the original – a test that comes down to a judge’s decision on how similar is too similar.  

As well as copyright infringement, Gifford has alleged Shiel misappropriated her likeness in breach of US law. We don’t have such a law in New Zealand. But we do have the Fair Trading Act 1986, which prohibits misleading or deceptive conduct in trade, including misleading advertising. An aggrieved influencer like Gifford could also rely on passing off. At a high level, Gifford would need to prove she has a reputation in her personal brand and Shiel has misrepresented herself such that consumers are likely to be misled or deceived into thinking her content is Gifford’s or is associated with Gifford. This could be challenging, especially in the influencer space, where algorithms are designed to feed similar content to viewers. Against this backdrop, good evidence would likely be needed to persuade a judge that viewers are likely to be misled between different influencers and their content.

Beyond the beige battle

An influencer's personal brand is undeniably valuable. It’s typically the result of years of hard work and creativity, culminating in a carefully curated image and online persona. The value of such a brand can be lost in one misjudged post, or exponentially improved by a single clever tweet. The aesthetic or ‘vibe’ created by an influencer’s content is more ephemeral and harder to protect. There are challenges in treating such an aesthetic as ‘trade dress’ and protecting it as intellectual property. It will be interesting to see where the US court lands on striking a balance between what should be kept exclusive and what should be in the public domain. 

The dispute between Gifford and Shiel rumbles on in the US. A recent attempt at mediation did not succeed so the case may well go to trial. In the meantime, New Zealand influencers and all those who trade on their personal brand aesthetic and curated content would be wise to keep an eye on how this story ends.