Sad Beige Battle: What's behind the US legal dispute over social media aesthetics and the German view

1. Background of the legal dispute

A remarkable legal dispute between social media influencers Sydney Nicole Gifford and Alyssa Sheil recently attracted attention in the USA. Gifford accuses her colleague of copying her characteristic visual representation on social media - consisting of neutral, beige and cream-coloured tones - and thus unlawfully appropriating her online presence. Both use this aesthetic to advertise products via so-called Amazon storefronts (see link).

But what's behind the controversy? The so-called "beige aesthetic" or "clean girl look" is a trend that has become widespread on platforms such as Instagram and TikTok in recent years. It is characterised by minimalistic imagery in muted, often monochrome colours, frequently combined with soft lighting and a nostalgic, melancholic undertone. The aesthetic is seen by many content creators as a deliberate distinction from the loud, colourful influencer style - and has long since become a “trademark” in its own right.

In April 2024, Gifford filed suit against Sheil, alleging, among other things, copyright infringement, infringement of her trade dress and unfair competition. In November 2024, the US District Court ruled to dismiss some of the allegations, but allowed the claims of copyright infringement, trade dress infringement and misappropriation of likeness to proceed to broad review. US commentators agree, however, that Gifford faces an uphill battle.

As a result, the debate raises fundamental questions: Can an aesthetic be protected by copyright at all? And how far does the protection of brand identities extend in the digital space? In the following, we take a look at how such a case would be judged under German law.

2. The view of German law

a) Copyright protection of an aesthetic

Under German copyright law (Section 2 German Act on Copyright and Related Rights, hereinafter “UrhG”), only specific works are protected - i.e. personal intellectual creations with a certain level of creativity. A purely stylistic design or a general visual "vibe", as in the case of the "beige aesthetic", does not in principle fall under the scope of protection of German copyright law.

Individual photos, videos or texts can be protected by copyright, but not the mere colour palette, tonality or general look of a social media profile. Even a curated visual language on an Instagram feed is unlikely to be sufficient to be recognised as a specific work within the meaning of the German Act on Copyright and Related Rights.

It is interesting to note that Gifford had registered numerous photos and videos with the U.S. Copyright Office. Due to the lack of an official register, this is of course not possible in Germany - because German copyright is an unregistered right that arises automatically at the moment the work is created. 

But in principle, German law also protects photographs (see Section 72 UrhG). However, the protection usually only extend to the technical recording performance and therefore does not extend to the production of almost identical photographs by taking the same motif again. Thus, it does not grant so called “protection of a photographic motif”.

In individual cases it is possible to rely on the general copyright protection under Section 2 (1) No. 5 if the creative achievement embodied in the original photograph is copied through a clear imitation or re-enactment (OLG Cologne GRUR 2000, 43 - Klammerpose: motif protection of a staged pose affirmed; BGH GRUR 2003, 1035 - Hundertwasserhaus: motif protection for photographic perspective and wide-angle effect denied).

For this, however, a photograph must first possess a so-called “creative substance” (“schöpferischen Gehalt”). If there is an individual character - for example through the special composition, perspective or technique - the defining features must be identified. Elements in the public domain such as a certain style or the mere choice of a motif are excluded unless they are individually distinctive. In this respect, it should be taken into account that various "aesthetics" and "vibes" such as "Vanilla Girl" and "Old Money" have become very popular on social media in the past and are being imitated by many users (see link).

It must then be examined whether and to what extent the characteristic features have been adopted in the imitated photograph. If the scope of protection is rather low due to a lack of creative substance and individual distinctive features, however, even minor deviations are sufficient to fall outside the scope of protection.

Claims based on copyright would therefore not be excluded from the outset under German law if a competitor had imitated a specific photo. However, due to the high legal threshold successfully enforcing respective claims will be a clear uphill battle.

b) Protection by competition law (§ 4 No. 3 UWG)

Outside the scope of application of copyright law, protection under German competition law in particular in accordance with Section 3 (1) German Act Against Unfair Competition (hereinafter “UWG”), Section 4 No. 3 UWG should be considered.

However, again, only specific goods or services are protected under Section 4 No. 3 UWG. In the case of a "vibe" and an "aesthetic", the starting point is initially a purely non-physical design idea, a style or an obvious motifs in the public domain, which as such cannot be protected (see Harte-Bavendamm/Henning-Bodewig, 5th edition, UWG, Section 4 para. 137).

Only when an "aesthetic" has been realised in a concrete form, claims under German competition law might become relevant. 

In this respect, it should be borne in mind that the products usually advertised by influencers regularly originate from third parties and no rights can be asserted in this respect. However, influencers offer advertising services in the form of the presentation and recommendation of third-party products and brands via social media and online platforms to promote sales. 

In this respect, it is interesting to note that Section 4 No. 3 UWG generally also covers the imitation of services. Similar to the case decided by the Higher Regional Court of Düsseldorf in 2019 concerning the imitation of a catering concept for trend food restaurants (Higher Regional Court of Düsseldorf, GRUR-RR 2019, 112), it might be worth exploring in the future whether the imitation of the website of a professional online influencer is actionable in this way. 

However, a further prerequisite for this would in any case be a so-called “competitive character” or “competitive originality” (“wettbewerbliche Eigenart”) of the service, i.e. that it is capable of indicating the commercial origin or special qualities of the provider. Once again, it should be borne in mind that various "aesthetics" and "vibes" such as "Vanilla Girl" and "Old Money" have been extensively used on social media in the past and have been imitated by many users. It will therefore not be easy to prove sufficient “competitive originality”.

Finally, it would have to be proven that there is unfair imitation, e.g. through an avoidable deception of origin or exploitation of reputation.

c) Trade mark protection

Protection under trade mark law would only be possible if the influencer has registered her aesthetics (e.g. certain visual designs, slogans or logos) as a trade mark or can at least prove that she has acquired secondary meaning for the respective signs (Section 4 MarkenG). Here, too, the hurdle is high, as mere stylistic features are generally not considered protectable as trade marks as long as they do not indicate a specific commercial origin.

3. Conclusion

It remains to be seen whether and how the case will ultimately be decided by the US courts.

However, at least under German law, it is likely to be difficult to successfully assert comparable claims. A general social media aesthetic – as popular and brand-building as it may seem subjectively – is difficult to define under German law. Only very specific, individually distinctive elements may be protected by copyright, competition or trademark law under certain circumstances.

This case shows once again that even in the digital space, we often find ourselves in legal grey areas. Influencers who want to build a distinctive brand identity should consider protection options at an early stage – for example, through trademark registration, terms and conditions, contracts with cooperation partners or clear content guidelines.

Our law firm will be happy to advise you on questions of copyright, trademark and competition law – whether you are developing a protection strategy for your social media presence, want to ensure legally compliant cooperation with other creators or are involved in a dispute over creative content.