I’ll be the first to admit that I was chuckling a little when we saw a copyright lawsuit filed earlier this year by influencer Syndey Nicole (real name: Sydney Nicole Gifford) against another influencer, Alyssa Sheil, claiming that Sheil’s copying of Gifford’s “style” amounted to copyright infringement. It was touted around the creator economy circle as a lawsuit over influencer style. I wrote more about that back in August.

Fast-forward to this past September, and a $71 million verdict in favor of OMG Girlz against MGA Entertainment as part of a trademark infringement case further represents a pivotal moment in IP law, particularly in the realm of artistic expression, branding, and influencer content. This decision, alongside last year’s Jack Daniel’s Supreme Court ruling, is set to reshape the way creators, influencers, and businesses approach content creation, brand partnerships, and the legal frameworks that underpin them.

Key Changes in Trademark Law and the Creator Economy

The lawsuit between the OMG Girlz and MGA Entertainment stems from allegations of intellectual property and trade dress infringement. The OMG Girlz, a teen musical group formed in 2009, accused MGA of creating a line of dolls—L.O.L. Surprise! OMG Dolls—that directly copied their distinctive looks, hairstyles, fashion, and overall brand without permission.

MGA, a major toy company, allegedly used the OMG Girlz’ likeness to market and sell the dolls, a move the plaintiffs argue constitutes cultural appropriation and misappropriation of their brand and image. The dispute escalated when MGA preemptively filed a lawsuit seeking a declaratory judgment of non-infringement, which prompted OMG Girlz to counterclaim, leading to multiple trials and, ultimately, a significant verdict in favor of the OMG Girlz.

The OMG Girlz case illustrates how the narrowing of First Amendment protections for third-party trademark use could significantly impact creators. This marks a departure from the widely used Rogers test, which previously allowed for greater flexibility when creators used brands or images in their content, balancing free speech with the unauthorized use of trademarks. The Rogers test provided a defense mechanism, especially for creators who often make use of well-known brands in their content to enhance relatability and appeal​.

The removal of this test in the OMG Girlz case, following the Jack Daniel’s Properties Inc. v. VIP Products decision, signals a tightening of the rules governing how trademarks can be used in artistic works. For influencers and creators, this could mean heightened legal risks when adopting or even referencing brands, styles, or even likenesses that are not their own, even if used artistically.

As noted by IP experts interviewed by Bloomberg Law, this verdict underscores the blurred lines between artistic expression and trademark infringement, suggesting creators will now need to navigate more cautiously through branding collaborations and content production​.

Cultural Appropriation and Trade Dress in Content Styles

Another crucial takeaway from the OMG Girlz case is the court’s acknowledgment of trade dress infringement, particularly where the aesthetics or visual likenesses of influencers and creators are at stake. The verdict established that MGA‘s L.O.L Suprise! OMG dolls, which bore striking similarities to the OMG Girlz group, violated the group’s trade dress rights. This verdict highlights a growing concern within the creator economy: the use of an individual’s or group’s distinctive look, style, or “trade dress” in commercial products.

For creators and influencers, this case offers a cautionary tale. The aesthetics that define the “brand” of a popular influencer or creator can now be more easily claimed as intellectual property. The case also banned accusations of cultural misappropriation from trial, though the public discourse surrounding the dolls’ visual similarities to the OMG Girlz group was still a critical factor. For influencers, particularly those from marginalized communities, the verdict suggests that visual styles or aesthetics that are part of one’s brand may be protected under trade dress laws​.

Lessons from Gifford v. Shiel: Influencer Disputes Over Style and Originality

While the OMG Girlz case has broader implications for the creator economy as a whole, the recently filed answer in Gifford v. Shiel provides a closer look at disputes specifically within the influencer ecosystem. The lawsuit between Gifford and Sheil revolves around claims of copying within the “clean girl” aesthetic, a minimalistic style popularized by influencers across social media. Gifford accuses Sheil of copying her content, while Sheil counters that this aesthetic was widely adopted by multiple influencers, making it part of the broader trends that many influencers promote​.

In her defense, Sheil highlights a key argument relevant to the OMG Girlz case: that influencers often share similar looks, styles, and product promotions because brands push those products to multiple influencers simultaneously. This reinforces the notion that the boundaries of originality in influencer content are murky, and that claims of ownership over aesthetics will likely become a more common legal battleground​.

The case further demonstrates how influencers collaborate with brands, often following strict guidelines on how to portray products. As Sheil notes, influencers do not create the trends they popularize—A-list celebrities and major brands typically establish these trends, which influencers then adapt for their own audiences. However, as the OMG Girlz case shows, when an influencer or group’s distinct look is appropriated for commercial gain, there are clear legal grounds for infringement​.

Future Considerations for the Creator Economy

The OMG Girlz verdict and the evolving landscape of influencer lawsuits like Gifford v. Shiel suggest that creators must now be more vigilant than ever in protecting their visual identities. As courts become more willing to recognize trade dress infringement based on personal aesthetics, influencers may need to take steps to legally safeguard their styles, looks, and branded elements.

From a business perspective, this shift could introduce new complexities in brand partnerships. Companies working with influencers must ensure they are not inadvertently infringing on someone else’s trade dress, even if the content feels like part of a larger, ubiquitous trend. Legal disputes over similar aesthetics, once seen as inevitable in the fast-paced world of social media, could now lead to costly litigation and reputational damage.

At the same time, influencers will have to rethink how they engage with trends and brands. The elimination of the Rogers test and the broadening of trade dress protections mean that creators may find situations in which they can longer rely on free speech defenses when incorporating trademarks or popular styles into their work. This could stifle some forms of creative expression but might also encourage greater originality in the content produced by influencers moving forward.

Back in August, I also noted the recent copyright and trademark lawsuit filed against Kim Kardashian for showcasing knock off furniture in a YouTube video, which, in Kim’s defense, was not known by her to be a knock off.

As a reminder: Influencers that don’t have a direct relationship with brands, such as simply ordering products off Amazon and using links for Amazon’s Affiliate Program, may be exposing themselves to liability for copyright and trademark infringement, regardless of whether or not they are using knock off pieces. Ultimately, there could be protected/protectable IP in a creator’s videos or photos simply by displaying a product.

The cases referenced in this article are:

• MGA Entertainment Inc. v. Clifford T.I. Harris, 2:20-cv-11548, (C.D. Cal.).
• Gifford v. Sheil, 1:24-cv-00423, (W.D. Tex.).
• Judd Foundation v. Clements Design, Inc., 2:24-cv-02496, (C.D. Cal.).

Article image created by me in Adobe Express using AI-generated images.