Influencer vs. Influencer
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Learn more at phrma.org slash IPWorksWonders. I wonder if you could introduce me to Sydney Nicole Gifford. Who is she? What does she do? Where does she live?

Sydney Nicole Gifford is 24. She lives outside of Minneapolis, Minnesota, and she is an Amazon influencer. That's Mia Sato, who writes about platforms and communities for The Verge. What that means is she posts on social media platforms like Instagram or TikTok, and she makes content that's like, my favorite Skims bodysuit dupes on Amazon, or my favorite kitchen finds on Amazon.

If you're not getting all your bags on Amazon, you need to see this. These are all my favorite affordable bags, starting with this tote. The faux leather is unreal quality and exceeded my expectations. It has a padded laptop. And the videos are very, you know, aesthetically shot and very meticulous, but they're really just a front-facing sort of doorway into Amazon. If you watch her videos, click through her links, and buy from her list of curated Amazon products, she earns some money.

And how would you describe her aesthetic? Her aesthetic is completely colorless, I would say. It's beige, neutral, cream, white, black, tan a little bit. It's very clean. It's very minimal. Okay, so can you now introduce us to Alyssa Scheel? Okay, so everything that I just said, just re-

Just copy and paste it. Let's talk about all of my favorite faux fur jackets from Amazon. This one is hands down my favorite faux fur coat that I've ever owned. Alyssa Sheal is, she's 21, so slightly different. She's 21 and she lives in Austin, Texas.

And Alyssa, like Sydney, does the same job. She's an Amazon influencer. And so she's making exactly the same type of content, all leading back to her Amazon storefront. And like Sydney, every time you purchase something that Alyssa has promoted, that you found through her page, she earns a little bit of money through each unit that she moves, basically.

And like Sydney, Alyssa's aesthetic is also beige and cream and white and black. And they sort of dress similarly. They have similar looking houses. They promote similar products. Maybe if you aren't paying too much attention, you would think they're the same person. And yet Sydney sued Alyssa. Briefly, why?

So to put it simply, the lawsuit pretty much boils down to Sydney saying, Alyssa, you will not stop copying me. It is a pretty common complaint for influencers and content creators. I think you hear people kind of beefing like this over you copied me. You're biting my look. But this time, the complaint is in federal court in the Western District of Texas. And?

And the biggest sort of marquee claim, I would say, is that Alyssa infringed on Sydney's copyright. And it's not a typical copyright claim. It's not that Alyssa screenshotted Sydney's posts and, like, re-uploaded them. The claim is that...

Alyssa violated Sydney's copyright by creating images that sort of have the same look, have the same vibe as Sydney's. And the claim in the suit is that Alyssa kept copying Sydney's content and Sydney lost income, she lost followers, she was sort of financially harmed by that action. So yes, this is the story of these two women and their two monetizable streams of influence.

But it's also a bigger story about how content creation works, what the algorithm rewards, and how much choice we actually have in our online lives. Today on the show, influencer v. influencer. I'm Lizzie O'Leary, and you're listening to What Next TBD, a show about technology, power, and how the future will be determined. Stick around. ♪

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That's O-P-E-N-P-H-O-N-E dot com slash TBD for 20% off six months. Openphone.com slash TBD. And if you have existing numbers with another service, Openphone will port them over at no extra charge. Alyssa and Sydney have met before. Just a few years ago, they both lived outside Austin, Texas, and even got together to network with another influencer.

In 2022 and 2023, the three women met up twice. And from Sydney's perspective, the meetups went great. There was nothing sort of off, nothing wrong. They were all on friendly terms. But according to Alyssa, especially at that second meetup, she felt a little iced out. She felt like there were passive-aggressive comments made about her. She felt like she was being quizzed on how she does her job.

And after that second meetup, she ends up blocking Sydney on social media. And Sydney, she told me, she didn't really think much of it. She was like, influencing can be hard. It's sort of, you know, it takes a toll on your mental health. So when Alyssa blocked her, she was not too upset. It wasn't like the women were best friends or anything. So Sydney carries on, posts her Amazon hauls, posts her Amazon recommendations for like something like 10 months. And she's like, I don't know.

And then months later, after the blocking happened, she starts to hear from followers who say, there is a girl who is making content that looks just like you. And I thought she was you. Wow. And that person is Alyssa. So Sydney sues Alyssa. How did Alyssa respond to the lawsuit?

Alyssa denies that she ever copied Sydney. She told me, you know, since I blocked her, I never even thought about her. I was not like going back and trying to copy everything she did. And Alyssa's response is like, hey, both of us make really generic content. Like that's literally like a line in her response filed to the court. It was like,

Sydney's look isn't original. A matter of fact, my look isn't original. Like this is just the genre of content. We're doing basic stuff here. Yes, it's basic stuff. It's basic images. It's not crazy like sort of design, like set design or anything. We're talking like pretty minimal. Like think of like, you know, you walk through an Ikea and it's really beautiful and clean and it looks like a magazine. All

All of this is like in an umbrella aesthetic called clean girl, which sounds bizarre, but it's very popular. It's sort of like soft, beautiful, sort of slightly curled hair, or it's either like, you know, cascading down your back or it's in a tight bun. And they dress in neutrals, beige, cream, black, white, and

Their houses are spotless. They have beautiful white bedsheets where you're like, how do you keep them so clean? They have perfectly manicured nails. It is sort of a whole look that is very popular online. And these two women operate within this aesthetic and sell products and a lifestyle that is supposed to be for people who want to emulate that look. There's this interesting other wrinkle, and I don't know how much it matters if it matters. So

Gifford identifies as a white Hispanic woman. She identifies as a black Latino woman. And so there's this like other element of like, I can't copy you. Don't don't be ridiculous. Like, how does that figure into this? Does it?

Yeah, it's actually a really interesting part of Sidney's lawsuit. So she accuses Alyssa of copyright infringement, tortious business interference, vicarious copyright infringement. There's all these different claims, but one of them is misappropriation, which is basically taking someone's likeness, the way they look, the way they speak, and profiting off of it. And

Sydney claims that Alyssa has changed her physical appearance to look more like Sydney. And that includes dyeing her hair a similar color at one point. Sort of speaking in the same tone, manner of speaking, she says. It even goes so far as to, in the lawsuit, she claims that Alyssa got the same tattoo as her. It is a floral tattoo on their bicep.

There's side-by-side images and the sort of exhibits that were filed. But Sidney's claim is that like, you copied what I look like so much so that people thought that...

we were the same person. And when they were seeing your content promoting Amazon stuff, which we both do, they thought that it was me. And that caused me to lose sales. The racial element is impossible to ignore. Indeed, Alyssa is a Black Latino woman. And her response is like, nobody thinks we're the same person. We're different races. And

And Sydney's response to that response is, well, when our phones were blocking our face, like we could have been the same person. It looks similar. So it is, there are all these really, really fascinating layers and levels to, you know, these two people who do their job online and who are sort of beholden to algorithms and their audiences who, you know, drive engagement to some stuff and not others. It's so fascinating. Yeah.

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I think the general audience is very familiar with the concept of influencers at this point, but both of these women are part of Amazon's influencer program. Tell me about what that program does specifically. So it's this really weird kind of like...

silo almost. Amazon promotional content, like influencer content, I'm sure a lot of people have seen it. It's like my top five favorite picks on Amazon. Like it comes up a lot. From a girl that buys way too much on Amazon, I would immediately repurchase these if I didn't already own them because they're must-haves on deal. These organizers have them for makeup, in my bathroom, literally everywhere. I actually can't believe these

It's really popular with like fridge restocking people or like organizational people. Oh, God, the clear plastic bins. Yes, exactly. So many fingers tapping clear plastic bins. Exactly. So like I'm sure you've seen it before, but it is like this whole separate ecosystem. I mean, it makes sense. Amazon is this enormous company.

e-commerce platform. A lot of people have Amazon Prime memberships. It totally makes sense that there is an influencer ecosystem specifically dedicated to pushing Amazon stuff. But there are creators who it's their entire job. These two women pretty much only do Amazon promotional stuff.

Wow.

But you can see how if you're moving like thousands of items, that really adds up quickly. Do we know how much they were making a year? No, they declined to say that. I will say that these two women are in their early 20s and they both just bought like beautiful homes. So I don't know, like we can guess. They probably make more than I do. But, you know, they're doing very well for themselves, I would say. And the Amazon...

ecosystem is both like ubiquitous but also kind of secretive. I should say Amazon declined to comment for my story. They didn't want to say how many people were in their program. They didn't want to say how much people have earned, like very basic details. But it's incredibly lucrative. And Amazon, you know, their influencers are a big part of how they push items, how they move products. And I think

it's not like Amazon is a neutral party here either. They have a huge influence in what ends up in these videos. Well, that's where I wanted to go next is how Amazon suggests the white, you know, the white boucle stool that doubles as a storage bin, like how much of this might be coming from what Amazon wants to push out.

So Amazon's guiding hand is a huge part of this story. And there are a bunch of different ways that Amazon influences what shows up in videos. One that I mentioned in the piece is these giant spreadsheets. And when I say giant, I'm talking like tens of thousands of rows of spreadsheets.

products that will be on sale for upcoming sales periods. So like around Prime Day or around Black Friday, influencers, media outlets, they'll get these enormous spreadsheets line by line of every item on sale. And they're supposed to use it sort of as recommendations or suggestions for what to feature in their roundups. So you can say like this product that we previously recommended is on sale for Prime Day, you know, on and on and on. So

Alyssa's response is like, it's not that weird that we would feature the same items because we both get these huge spreadsheets. Yeah. And when you think about like tens of thousands of items, that might be kind of, it's like, okay, that's sort of a weird coincidence. But remember that these two women promenaded

promote the same type of items and in the same colors. Like it's like beige, cream, white, black, you know, they're not going to feature like a bright orange laptop case or something. So there's a little bit of self-selection going on already. There are also a lot of Amazon resources that the company publishes for influencers because they, I think, acknowledge that finding products to purchase and then suggest to people does take time. Like Amazon, you

You know, it's supposed to have limitless shopping possibilities. But it's a lot to scroll through thousands of products trying to find something that you feel comfortable buying and then, you know, kind of hawking to your audience. And so Amazon will have like...

landing pages that are like, here are the different search terms that are trending right now. Here's what people are looking for. They're looking for back to school backpacks, or they're looking for pumpkin themed decor for fall. And they will have trending items, specific products that they say, what about this? What about featuring that?

There are also sometimes bonuses attached to certain items where you can earn a bump in commission if you make a sale of a certain product. So like obviously if someone is earning more money with something, that might also incentivize them to promote a specific item. And now think about all the thousands of people who are also having that bonus dangled in front of them. Like is it that weird that two people would promote the same thing?

This is where I think there's this really interesting tension that you bring up in your piece where I think you said the line is shopping influencers like her have figured out how to build a career off someone else's impulse buys. So it is both the thing itself, but the marketing of it is what sells it. The way those fingers tap the, you know, specific plastic bin. And that's where I wonder if,

Is it the aesthetic that's being copied or is it the spiel that's being copied, the presentation? Like this lawsuit seems to hinge on vibes. Yeah, absolutely. And like even before you purchase anything from either of these women or people like them,

the first thing you're being sold is a lifestyle. The videos, the photos present a vision of luxury that most people can't attain. Not just because like these women buy a lot of stuff and it does add up, but also all of the items are really sort of derivative of someone else's

And the person I sort of pin a lot of this on is Kim Kardashian. We mentioned in the story, like, do you remember like two, three, four years, maybe even longer, she did the Vogue house tour and everyone freaked out because her house is like one color. Yeah.

I find that there's so much chaos out in the world that when I come home I want it to be just really quiet and I want everything to feel calming. It's like I have the playroom filled with clutter. Bedrooms, one is pink, one is purple, one is blue, one is dinosaurs. It's like each kid can have their full style and taste in their bedroom and have so much fun but in the main house

I really like the calmness and shockingly, 4Kids hasn't messed up my cream house.

In the course of reporting this story, I went back and watched that video. And I like gasped when I saw a specific chair in her house tour because that chair, a knockoff of it, was in Sydney's house when I went to visit her. Like that is how one-to-one this is. So much so that this very expensive designer chair that was in Kim Kardashian's house, which sells for like hundreds of thousands of dollars,

the sort of downstream replica of it was in this woman's house whose vibe sort of imitates Kim Kardashian's vibe. Like it's very, it's a very like straight line. But that is sort of implicitly what's being sold through this influencer content. And I would argue a lot of influencer content is here is sort of a normal girl living this beautiful life in this perfect home. And maybe you could get that too if you buy this Amazon thing.

Well, you're bringing up this idea of being sued for copying the feel or the gist of a creative work, thinking about the blurred lines lawsuit or the Air Jordan jumping silhouette. Like, where is the line between here is an affordable version of Kim Kardashian's chair and here is just...

outright copying. So the legal experts that I spoke to kind of, the first thing they presented to me was, first, is there anything in Sydney's photos and videos that is protectable in the first place? Is there a creative choice happening here? You mentioned the Air Jordan logo. So I don't know if listeners are like familiar with that, but there was a photographer, co-rentmeester, who photographed Michael Jordan, um,

jumping towards a hoop and dunking a ball. And you probably haven't seen his photo, but you've definitely seen Nike's version of it in the Air Jordan logo. It's on my shoes. Yeah, exactly. And so Nike went and basically recreated that image and then used their recreation as the silhouette. Wow.

Nike prevailed in that case because the judge looked at the two images and said, well, it is different enough. You did something differently. The sort of background is different. The pose is different. And so this, you know, you can't own those elements that you're claiming. And a judge, this could go before a judge and they would look at it and question whether there is creative choices going into influencer content like this.

Or is it just a trope of the genre? Is it just the swinging saloon doors in a Western film where it's not protectable and it sort of reappears across works and nobody can really lay ownership, lay claim to it? Is there a possibility here that this case is as much about what the algorithms of Amazon or...

looking at various social media channels that these women are on, about what those algorithms reward rather than copywriting something that an individual has done? Yeah, for sure. And that was sort of like the journey of reporting this piece for me, where if you look at the exhibits filed by Sydney in her case, there are like 70 pages of side-by-side images where she said, see how Alyssa copied me? If you scroll through them,

you will get sort of a weird feeling. It's like, okay, there are a lot of similarities. But as I started peeling back the layers and talking to each woman and scrolling through this side of TikTok and Instagram, more and more, I was unsure. It felt very sort of like House of Mirrors where I would watch one video from one of them and then the other would pop up later. And then someone else, like a third person would pop up

And everyone was doing the same thing. They're using the same trending audio. They're doing the same sort of calendar of promotion where it's like, now it's Coachella season, so we're all making Coachella content. Now it's like, you know, fall, so we're all promoting fall. Now it's Christmas, so we're all setting up the same artificial Christmas tree. Like, it's like pretty eerie, actually. And so...

in my reporting, I wanted to explore this question of could it be possible that these two people are just converging, that they started at their distinct places and as they followed what took off on TikTok, what's trending, what videos of theirs perform better, that they just naturally sort of got on the same track. It's very sort of like Black Mirror, kind of creepy. But I think that there's

tremendous amount of overlap between this kind of influencer content and in other niches as well. It is sort of just the way that platforms work right now, that recommendation algorithms work. It's promoting a lot of the same. And the content that breaks through is a stuff that has naturally been most gripping or interesting or most viewed by the largest number of people. I think

Your story and this suit are simultaneously so interesting because there is an element of ridiculousness to it. And yet, this is a massive industry. And I think an industry that people maybe don't take seriously, think is not a real occupation, and...

the stakes here for that industry feel very high. Yeah, I think for each of these women, the stakes are their lives, right? Like their lifestyle, their living, the way they make their living. And the influencer industry is worth billions and billions of dollars, but relative to its obvious influence, there aren't that many protections in place for creators. Often these are like

Teens who are then having to negotiate with brands they're doing deals with, signing away their rights to certain things, you know, kind of relatively unprotected compared to the companies that they're negotiating with. People, I think, especially niches that are women-based.

directed at women or female coded are taken less seriously. Like I want people to know that this is a real job and like more than half of Gen Z kids, I think, want to do this job. So we have to like be realistic about it. So the stakes are incredibly high for both these two women and other people in the industry because it could lead to a wave of similar suits where people are being sued for having a similar look or aesthetic or feel as someone else.

even though it is not sort of the traditional copyright claim. And that's a big, you know, it's obviously an if Sydney is successful, but I'm wondering how many people are looking and watching the suit being like, there's someone who is just like, who I know just like that, who I feel like they're copying me. And like, what if I sued them? Do you think, or do the people you've talked to think that she's got a case?

By and large, for the copyright claim, I think that legal experts think it feels like a reach. But the suit has survived so far. The latest is that a magistrate judge last month made their recommendations for a few of the claims to be thrown out. But the big ticket items like the copyright infringement, the misappropriation have survived so far.

So we will see. I don't want to like predict one way or another. Often it feels like, you know, I'm not a lawyer, but I write about a lot of this stuff. And it's like the legal system is vibes based, which is pretty funny because this case is also vibes. It's just like it's very strange. I do want to be sure to mention, though, that no matter what happens in this case,

there will be a winner and that's Amazon, obviously, because it doesn't matter who wins here. Someone will take their spot or be there to sell the same cream pots and pans or boucle stool and Amazon will profit no matter what. The house always wins. Exactly. Mia Sato, thank you so much for this incredible story and for talking to me about it. This was so fun. Thank you so much.

Mia Sato is a reporter at The Verge. And that is it for our show today. What Next TBD is produced by Evan Campbell, Patrick Fort, Shana Roth, and Ethan Oberman. Our show is edited by Paige Osborne. Alicia Montgomery is vice president of audio for Slate. And TBD is part of a larger What Next family. And if you like what you heard, the best way to support us is by joining Slate Plus. You get all your Slate podcasts ad-free, as

as well as some cool exclusive bonus content. We will be back next week with more episodes. I'm Lizzie O'Leary. Thanks for listening. It's always nice to get more for less. So here's a life hack that can automatically put some extra cash in your pocket. Discover will automatically double all the cash back you've earned on your credit card at the end of your first year with Cash Back Match. So you could get some money for this holiday season and get more next holiday season. It pays to discover.

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