Page 13 - The Katten Kattwalk - Summer 2025 - Issue 29

Sydney alleged multiple causes of action,
including direct copyright infringement, vicarious
infringement, violations of the Digital Millennium
Copyright Act (DMCA), trade dress infringement
and misappropriation. Among other allegations,
Sydney asserted that Alyssa violated the DMCA’s
prohibitions against providing false copyright
management information by intentionally creating
social media posts that were “indistinguishable” from
Sydney’s posts, published under Alyssa’s usernames
and without any reference to Sydney. With respect
to trade dress infringement, Sydney averred:
Plaintiffs have a distinctive trade dress
comprised of monochrome cream, grey, and
neutral-beige colors coupled with modern,
minimal, sophisticated styling … Markers
of Plaintiffs’ distinct trade dress include:
promotion of products only falling within
the monochrome cream, grey, and neutral-
beige color scheme; styling of products
in modern, minimal backdrops; creation
of content featuring Sydney herself; and
Sydney’s distinct relatable way of speaking
to followers. Defendants have intentionally
copied and attempted to replicate Plaintiffs’
trade dress. Defendants have directly copied
and infringed on Plaintiffs’ intellectual
property rights by promoting the same
monochrome cream, grey, and neutral-
beige products featured on Plaintiffs’
Platforms with the same modern, minimal,
and sophisticated styling and backdrop.
Defendants have further tried to imitate
Sydney’s appearance and sound by copying
Sydney’s haircut, apparel, and way of
speaking.
In response to the Complaint, Alyssa moved to
dismiss all of the causes of action except for the
first claim for copyright infringement. However, the
US magistrate judge assigned to hear the motion
recommended that it be denied in most respects,
dismissing only a limited number of the less
essential claims. Then, on December 10, 2024, the
district court judge adopted the magistrate judge’s
recommendations in their entirety.
Exhibits from Plaintiffs’ Original Complaint against
Defendants
Notwithstanding that the overwhelming majority of
her case survived Alyssa’s dismissal motion, Sydney
nonetheless opted to resolve her claims. The terms
of the settlement have not been made public, but
Sydney’s decision may have been based, in part,
upon the probability that she could not prevail on the
merits of her claims.
Many experts and commentators have observed
that a “vibe” or a “minimalist aesthetic” lacks
sufficient originality to be protected by copyright or
trademark law and that, therefore, someone who
copies such a vibe or aesthetic cannot be held liable
for infringement. Alyssa’s photographs and videos
didn’t duplicate Sydney’s protected expression; they
merely featured the same goods and apparel, in the
same neutral shades, presented in commonly-used
arrangements and staging. Others have expressed
the view that it is not particularly surprising that the
posts and photographs of influencers who promote
similar goods from the same manufacturers may
share common features and a common “look.” This is
because brands often rely on multiple influencers to
promote their products, who reach out to the same
audience of potential consumers.
A ruling on the merits of Sydney’s claims might
have provided useful guidance to influencers and
others who are either seeking to prevent rivals
from piggybacking on their industry and effort or,
conversely, to know when their imitation crosses
the line between the sincerest form of flattery and
infringement. For now, competitors should tread
carefully as they seek to protect their content or
mimic the content of others.
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