Influencer marketing peaks this time of year, raising renewed questions about how online creators can grow and protect their businesses. Like other marketable entities, content creators build success and revenue through carefully curated brands. An influencer’s brand often consists of a cohesive visual identity that is recognizable across short-form videos and social media grids.

Can this visual identity—often referred to as an “aesthetic”—be protected as intellectual property? And what happens when an online aesthetic is copied?

An influencer’s aesthetic is often their most valuable business asset. It drives engagement, attracts sponsorships, and distinguishes one creator from countless others operating in the same space. As such, influencers understandably want to protect it to the fullest extent possible.

Copyright law, however, draws a clear distinction between protectable expression and unprotectable ideas. Copyright protects original works of authorship fixed in a tangible medium of expression, not general concepts, styles, or themes. A photograph created and posted by an influencer may be eligible for registration with the U.S. Copyright Office, but the broader “look and feel” or aesthetic behind the content generally cannot. As a result, while influencers may secure copyright protection for individual images, the protection afforded to an overall aesthetic, arguably their brand, is often thin.

This issue was at the forefront in Gifford v. Sheil, a Texas case from earlier this year, where one influencer accused another of copying her social media content and overall aesthetic. The plaintiff had registered copyright for 140 images from her social media accounts, including photos of her outfits and Amazon product hauls, in an effort to secure exclusivity over what she views as her brand.

The complaint relied heavily on side-by-side comparisons of the influencers’ posts, emphasizing shared elements and arguing that the defendant was attempting to profit from copying the plaintiff’s brand. However, the case underscores the difficulty of using copyright law to protect an aesthetic, particularly when the defendant created the allegedly infringing images herself. As influencing continues to be both profitable and creative, more cases like this may arise, testing the boundaries of copyright protection.

For now, though, while social media aesthetics may be highly lucrative, they are unlikely to be copyrightable. When original content is directly copied and reposted without authorization—rather than independently recreated—creators can rely on the Digital Millenium Copyright Act (DMCA) to enforce their rights. If a creator discovers that their original image has been reposted without consent, they may submit a DMCA takedown notice to the hosting platform requesting removal of the infringing content.

As a best practice, creators seeking to protect their brands should actively monitor the web for unauthorized reposts and act promptly to enforce their rights where direct copying occurs.

For more information on the DMCA takedown process, please reach out to Tucker Ellis or see our May 2025 IP Tip.