Producers of ‘The Big Bang Theory’ win dismissal of copyright suit over ‘Soft Kitty’ lyrics

“Jim Parsons at PaleyFest 2013” by iDominic. Licensed under CC BY-SA 2.0.

On March 27th, a memorandum and order entered into the U.S. District Court for the Southern District of New York (S.D.N.Y.) which dismissed a lawsuit alleging that the producers of the television sitcom The Big Bang Theory had infringed on the copyright of a nursery rhyme writer. The order was granted by the judge after it was determined that the plaintiffs could not prove that the writer maintained their copyright to the song.

The original lawsuit filed in December 2015 targeted The Big Bang Theory’s use of the song Soft Kitty, a song which the character Sheldon Cooper asks people to sing whenever he’s sick or needs mothering. The lyrics to that song were written in the 1930s by Edith Newlin, a published children’s author and mother of the two plaintiffs listed in the case. The lyrics were published by Willis Music Company in 1937 in a compilation where the song was titled Warm Kitty. Willis renewed the copyright registration covering the collection of nursery school songs in 1964. The plaintiffs alleged that this renewal served to register and renew Newlin’s rights to the Soft Kitty lyrics. This, the plaintiffs reasoned, required Willis to request permission from Newlin or her successors to license the song to Warner Bros. Entertainment, producers of The Big Bang Theory.

The district court judge in the case granted the defendant’s motion to dismiss the suit on the grounds that the plaintiffs didn’t have a valid copyright covering the lyrics. As the memorandum and order notes, the court reached its decision after interpreting Section 24 of the 1909 Copyright Act, the law which governs copyright for works completed prior to 1978. Section 24 covers the renewal of copyrights under the 1909 version of the law.

As the court order notes, “Section 24 is hardly a model of clarity.” This provision gave a proprietor the right to renew a copyright if that copyright was owned by the proprietor. The plaintiffs argued that Newlin transferred her common law copyright and right to first publication to Willis while retaining “her copyright and all other rights to the lyrics”:

“But plaintiffs cannot have it both ways. Either Newlin assigned to Willis Music the copyright at issue here (and which defendants are alleged to have infringed), in which case plaintiffs have no claim, or Newlin retained the copyright and Willis Music had no right to renew it.”

Essentially, the court held that you cannot own what you’ve already given away. The court noted that the “common law copyright” transferred were the same as “copyright and all other rights” which the plaintiffs alleged were still held by Newlin. “This is a distinction without a difference,” the court found. The court held that the plaintiffs failed to establish that they held a valid copyright, thus dismissing their copyright claim.