Bad Influence
November 27, 2024 at 09:17PMIs “influencing” a real job, a creative pursuit? Are unboxing videos art? Are vibes intellectual property? The answers to all these questions is a resounding “Maybe?” But Gifford v. Sheil aims to change the answers to “Yes!” Mia Sato walks us through the ins and outs of two Amazon influencers with very similar, Kim Kardashian-inspired aesthetics — neutral, monochrome, clean — whose similar feeds and videos who are putting copyright law to a very 21st-century test.
“The really hard part for the plaintiffs in this case is to prove that in these photos and videos there is something protectable by copyright — that there is creativity going on here that was copied,” says Blake Reid, associate professor of law at the University of Colorado Boulder. The photos in question are relatively banal: images of a figure wearing generic clothing; a shot of a desk with a chair tucked in halfway. Sheil’s lawyers argue that the imagery Gifford claims was ripped off is actually just standard fare for influencer content that reappears again and again and which nobody can lay claim to — it’s the Amazon haul equivalent of swinging saloon doors in a country Western film, Reid explains.
And because the images are not exact replicas, you have to look instead at how a creative idea was expressed and executed: what angle the photographer used; how they staged the image; and all the other “gory details” of creative choices.
But: no matter how the lawsuit goes, there’s one party who always wins.
Gifford v. Sheil is not the first time an influencer has accused another of copying them — copyright itself is frequently weaponized in inter-creator conflicts through the Digital Millennium Copyright Act (DMCA) notice-and-takedown regime. Gifford’s suit, which takes the battle out of the realm of platform-level DMCA adjudication and into a federal district court, significantly raises the stakes. Perhaps the suit will serve as a serious warning shot to other influencers, but it mostly strikes me as a last-ditch effort by someone who has exhausted her other (few) options.
Content creators are gig workers with a fancier job description, operating like an army of freelance one-person marketing firms, navigating an industry where just about anything goes. When there are disputes — and there often are — it’s the individual influencers who are left holding the bag, even if they’re not the ones actually producing and selling the products, managing content creators, or hosting the storefronts. It doesn’t matter if it’s Sheil or Gifford who convinces you to buy the throw pillow; Amazon gets paid either way.
from Longreads https://longreads.com/2024/11/27/bad-influence/
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