An unusual case out of Texas raises an intriguing question (to read the full article, subscription may be required): Can you copyright a vibe? 

In Gifford v Sheil, one influencer has brought a claim against another for copyright infringement, trade dress infringement and misappropriation of likeness, among other claims. Gifford alleges that Sheil is copying her minimalist, beige, “clean girl” brand on social media. She submitted several examples to demonstrate the similarities between the two accounts, including posts with parallel style, colouration and messaging, curated Amazon product lists and even a similar flower tattoo on their inner arms.

While Sheil’s motion to dismiss the claim was partially granted, the court allowed the claims for copyright infringement and misappropriation of likeness to proceed to trial. The parties are now in mediation.

Copyright in the Canadian context

Gifford was able to bring an infringement claim in the U.S. because she registered copyright in her social media posts. While registration is not required to pursue an infringement claim in Canada, it confers certain presumptive benefits, such as serving as evidence of ownership. However, registration alone does not guarantee protection. To qualify for copyright, a work must meet two legal criteria: it must be original and fixed in a tangible form.

Copyrightable works

In Canada, originality is defined as an exercise of “skill and judgement,” distinguishing it from the more stringent U.S. approach which requires creativity. “Skill" involves applying one's knowledge to create the work, while "judgment" refers to the capacity to discern or form opinions.

The fixation requirement ensures that copyright protects the expression of ideas and not the ideas themselves. Canadian courts have consistently refused to extend copyright to ideas, as doing so would unjustly grant a monopoly on concepts that should remain broadly available, free for others to use and build on—provided they are not direct copies of another’s work.

Copyright infringement

Once copyright is established, the owner holds the exclusive right to produce or reproduce the work or any substantial part thereof. Unauthorized acts that violate these rights constitute copyright infringement. In Canada, two elements are required to establish copyright infringement:

  1. Substantial similarity between the infringing work and the copyrighted work.
  2. Proof that the copyrighted work served as the source for the infringing work.

Determining whether substantial similarity exists between a copyrighted work and an allegedly infringing work requires courts to navigate the blurry line between idea and expression. Cases often proceed to trial where two works appear similar or share common ideas, with the central question being: what is copied—an idea, or its expression? If only the idea itself—rather than the author’s skill and judgement in expressing that idea—is copied, there will be no infringement.

Take the U.S copyright suit against Katy Perry’s Dark Horse. The plaintiff claimed that Perry had copied the instrumental beat from their song, Joyful Noise. However, the Ninth Circuit affirmed there was no evidence of copyright infringement because the disputed notes were a “musical cliché” widely present in the cultural ether and featured in many songs. These elements were considered unprotectable because they constituted a “basic musical device”—an idea, not an expression.

Similarly, in Rains v Molea, the Ontario Superior Court found no evidence of copyright infringement in two paintings of a crumpled piece of paper. The court reasoned that Molea did not copy the original expression of Rains’ painting, but rather the underlying idea. It emphasized that granting Rains copyright over all depictions of crumpled paper would be overly broad and hinder the creation of future works.

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Beige aesthetic: Idea or expression?

If the suit proceeds to trial, Gifford’s success ultimately hinges on whether she claims that Sheil copied her tangible expression (e.g., photos and videos) or her “vibe.” Based on the elements required to establish copyright, an aesthetic or “vibe” in and of itself is not likely to receive copyright protection. Protecting “vibes” could set an undesirable precedent which would open the door for infringement based on broad similarities.

However, Gifford’s photos and videos, if original and fixed in a tangible form, likely qualify for copyright protection. To succeed in a copyright infringement claim, she must prove that Sheil reproduced a substantial part of her original expression. Herein lies the struggle of Gifford’s claim: did Sheil copy a substantial part of Gifford’s skill and judgement, or simply an idea?

The 2018 U.S. case of Rentmeester v Nike illustrates this point. Photographer Jacobus Rentmeester claimed that Nike copied his photo of Michael Jordan to create the iconic Jumpman logo. The claim was dismissed because Nike provided evidence that it commissioned another photographer to take a similar image. The court found that what was copied here was an idea—a leaping pose of a basketball player—and not Rentmeester’s specific expression.

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The originality of Gifford’s work may also be a factor that courts consider in establishing infringement. In copyright law, works that possess a “weaker” degree of originality enjoy a narrower scope of protection, requiring near-exact copying to establish infringement. This standard could pose challenges for influencers who are rewarded by trend-driven social media algorithms which favour a certain degree of homogeneity.

The impact of Gifford v Sheil on influencer culture

Copyright law did not foresee a digital marketplace which functions, in many aspects, like an echo chamber of influence. Successful influencing in a trend-driven space necessitates some conformity to popular aesthetics recognizable within the public sphere. In this algorithmic trend-cycle, high volumes of similar content are pushed to users based on their interests, perpetuating a demand for such content from creators. 

The overlap between trendsetting and imitation creates a blurry line between lawful inspiration and infringement, a distinction that carries significant implications for influencer culture. If this case proceeds to trial, courts may provide further guidance on whether digital aesthetics and “vibes” can be protected—or whether they remain part of the public domain, open to reinterpretation and reinvention.

Protecting your brand

As these modern issues work through the courts, here is how you can protect your online presence now:

  • Watermark your content: Add watermarks to your images and videos to deter unauthorized use of your copyrighted work. Use your trademark, logo or a copyright symbol as a visible layer of protection.
  • Register your IP:
    • Trademarks: Registering a trademark strengthens your ability to enforce your rights against unauthorized use of your brand and reputation.
    • Copyright: While copyright exists automatically upon creation, registration offers key benefits, including evidence of ownership and a potentially stronger legal position in infringement disputes.
  • Monitor and enforce your IP rights: Monitor the marketplace for unauthorized use of your IP. Consult an IP lawyer to explore protection and enforcement options.

To learn more about how to protect your online presence, contact the authors or a member of Gowling WLG’s Entertainment & Sports Law practice group.