Social Media and Intellectual Property (Part VI): Select Copyright Cases

This post briefs three copyright cases that provide insights into copyright issues with respect to content posted on Social Media platforms.

Scrabble v. Scrabulous

In 2008, two Indians Rajat and Jayant Agarwalla, launched a Facebook App called ‘Scrabulous.’ It was a word game similar to Scrabble. Initially Mattel, and later Hasbrow, right holders of the Scrabble game sued the Agarwalla brothers for both copyright and trade mark infringement at the Delhi High Court.

After reviewing the facts, the Delhi High Court held that there can be no copyright in the word game Scrabble, and that Agarwalla brothers are not liable for copyright infringement. However, with respect to the trade mark, Scrabble, the Court stated that Scrabble is a famous mark and that any mark similar to it would be infringing the Trade Mark. It pointed out that the use of Scrabulous would amount to trade mark infringement. Following the judgment, the brothers changed the name of the game to Lexulous.

Stephanie Lenz v. Universal Music

Stephanie Lenz, a young mother, uploaded a video of her child dancing to Prince’s tune – Let’s Go Crazy, on YouTube. In the video, the child is seen making moves, while the song is played in the background. The video was uploaded in the year 2007.

Universal Music, the owner of the sound recording, was not too happy with the use of the music in the video, which was getting great attention. Therefore, Universal Music sent a DMCA take down notice to YouTube, and YouTube took it down. In response, Stephanie sent a notice to YouTube claiming that the use of the song in the video was fair use, and the video was thereafter restored by YouTube.

Aggrieved by Universal Music’s action, Stephanie filed a suit claiming that Universal Music was liable for misrepresentation as it had not considered whether the use of the song in the video was permitted under the law, which is required to be done before a DMCA notice is sent. Referring to a statement made by Universal Music with respect to its intent to take down all uses of Prince’s music from YouTube, Stephanie claimed that Universal Music was acting in bad faith without assessing if each video amounted to fair use or not.

Affirming the decision of the US District Court, the Ninth Circuit held that a fair use assessment is necessary before a DMCA notice for take down can be issued. It further pointed out that whether such an assessment was pursued or not was a question of fact to be determined by a Jury.

Agence France – Press V. Morel

Daniel Morel, a photographer, took photographs of the devastation caused by the Haiti earthquake, and posted them on Twitter. Agence France – Press (AFP) discovered the said photographs on another person’s Twitter account. The second Twitter user had re-posted them after removing Morel’s authorship details. AFP took the images and distributed them. The photos were sent to Getty images from where Washington Post picked them up and published them.

Morel sued AFP and Washington Post along with Getty images for copyright infringement. The Court held the news agencies liable for copyright infringement and granted damages to the tune of 1.2 million dollars. The Court stated that the availability of photos on Twitter allows Re-Twitting and distribution among Twitter’s partners, but does not allow a third party to use them.

Contributed by Social Media Law Team of BananaIP

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1. Stephanie Lenz v. Universal Music Corp and Others

2. Agence France Presse v. Morel, 934 F. Supp. 2d 547 (2013).

3. Agence France Presse v. Morel, 2014 U.S. Dist. LEXIS 112436 (S.D.N.Y. Aug. 13, 2014).

Other posts in this series: