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.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Gene Quinn

Steve Brachmann is a freelance journalist located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He writes about technology and innovation. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients and is available for research projects and freelance work.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 5 Comments comments.

  1. Caesar Salazar April 6, 2017 1:45 pm

    Wasn’t there a big bru ha ha about the Happy Birthday song as well? Seems somewhat childish to me.

  2. patent leather April 6, 2017 5:31 pm

    It seems childish until YOU are the author!

  3. Caesar Salazar April 6, 2017 8:56 pm

    Haven’t seen angry dude on here in a while. I hope he didn’t do anything drastic…

  4. Benny April 7, 2017 8:14 am

    Patent leather,
    It is a business decision. You ave to balance the royalty income from purchased rights aganst the loss of public credibility when trying to assert rights which the majority of the uninformed public would assume were in the public doman.
    In one episode of Nickelodeon’s series “”Sat and Kat”” the characters sing a version of the famous song “”Take me to the ball game”” and change the last line to “”we don’t have to pay for this song ’cause it’s public domain””

  5. Gene April 7, 2017 8:31 am

    yesterday amy sang the song in three different languages to sheldon. har har. there ya go Newlins.