The Big Bang Lawsuit: “Soft Kitty” Copyright Claim Now Out Of The Bag

by Lisa D. Rhooms

Please say it isn’t so! “Soft Kitty”, a lullaby beloved by character Dr Sheldon Cooper on the hit American sitcom, the Big Bang Theory, and fans of the show at large, has become the bone of a recent copyright contention. The essence of the claim is that this song, so cherished, is an infringement of the copyright of an earlier poem “Warm Kitty”, which was published in a book of nursery rhymes.

The action, filed December 28, 2015 and brought by the plaintiffs, the children and beneficiaries of the copyright of Edith Newlin, set out in the pleadings[1] that the producers, distributors and other parties to the series, including merchandisers, and Willis Music Company, have used their mother’s words, the “Soft Kitty Lyrics”[2] in their entirety, except with minor change to the word order[3], without their authorisation. The plaintiff’s further contend that such use has resulted in great success to the show, the song having become iconic, and that the words have been reproduced, again in their entirety, on various items of merchandising, which has been beneficial to the defendants. The “Soft Kitty Lyrics”, it is claimed, were written by Edith Newlin in the 1930’s and later published in 1937, with her permission by Willis Music Company, a defendant to the claim, in a book of nursery rhymes. The plaintiffs plead that in 1964, when the copyright registration of 1937 was renewed by Willis Music Company, their mother’s copyright was also renewed.[4]

Another interesting point raised by the pleadings, is the fact that the executives of the Big Bang Theory, actually sought to licence the “Soft Kitty Lyrics” and did so, securing an agreement with Willis Music Company. The plaintiffs claim however, that they too hold copyright in the lyrics, and such deal was brokered without their consent. Further, the executives failed to credit their mother for the lyrics, instead crediting Bill Prady, a principal of Chuck Lorre Productions, one of the defendants.[5]

Jurisdiction for the action is claimed under section 101, the definition section of the 1976 United States Copyright Act[6] and sections 1331 and 1338 (a) of the US Code, title 28.[7] Later in the pleadings, the plaintiffs set out specifically, the instances in which the “Soft Kitty Lyrics” have been used on the show[8], to illustrate that these lyrics, sung by Dr Cooper and other characters, has become a well-known feature, sung to comfort a character who is sick or otherwise distressed. The plaintiffs also set out in detail, the use of the lyrics in merchandising, on articles such as t-shirts, hoodies and singing toys, among other items.[9] Also set out, are other occurrences of where the lyrics have been used, for example in promotional competitions.[10]

The plaintiffs’ claim for relief, falls within section 106 of the Copyright Act[11] which sets out the exclusive rights of a copyright owner to the copyrighted work, including the right to reproduce the work, create derivative works based upon the earlier work, and publicly perform or display the work.[12] The plaintiffs assert that these rights have been infringed by the defendants, and such has been “…with knowledge or reckless disregard for the plaintiff’s exclusive rights”[13]. Further, it is contented by the plaintiffs that the alleged agreement between the defendants, regarding the licence sought for the “Soft Kitty Lyrics” amounts to contributory infringement.[14] They therefore claim for damages, profits made from the infringement, their attorneys costs, and injunction to restrain further infringement, by virtue of sections 502 (injunction), 504 (damages and account of profit) and 505 (attorneys’ fees) of the Copyright Act.[15]

As the plaintiffs have demanded a trial by jury to deal with all the triable issues, it will be interesting the see each party’s arguments, and in particular how they will deal with the issue of the licence, where Willis Music Company is in fact, as well, a copyright holder of the “Soft Kitty Lyrics”. Issues to be determined could possibly be whether as copyright holders, there was authority by Willis Music Company to issue the licence to the use of the lyrics, and whether the executives of the Big Bang Theory can rely upon the fact of copyright ownership by Willis Music Company, to claim any indemnity against infringement, on the basis of some sort of assurance that Willis Music Company indeed had the right to negotiate a licence.

While the fate of “Soft Kitty” hangs in the balance, and Dr Sheldon Cooper and the fans of the series look on to see what will happen to this iconic song, which they sometimes find themselves singing out of the blue, the decision of the jury will be of massive importance and financial consideration for both parties. Either way this decision goes, the losing party might be left clutching the ever heartening, now sadly contentious, lyrics of this lullaby.

 

Lisa Diana Rhooms,

Assistant Editor, QMJIP

 

[1] See pleadings here http://graphics8.nytimes.com/packages/pdf/arts/big-bang-lawsuit.pdf

[2] ibid para 1

[3] ibid para 26 “Warm Kitty” reads “Warm kitty, soft kitty, Little ball of fur, Sleepy kitty, happy kitty, Purr! Purr! Purr!” while, ibid para 48 “Soft Kitty” reads “Soft kitty, warm kitty, Little ball of fur, Happy kitty, sleepy kitty, Purr! Purr! Purr!”

[4] ibid paras 3 and 33. Further information on renewal may be found here http://copyright.gov/history/1909act.pdf in the 1909 Act s. 23

[5] Pleading (n 1) paras 6 and 53

[6] Copyright Act, 1976

[7] US Code: Title 28 Judicial and Judiciary Procedure

[8] Pleadings (n 1) para 50

[9] ibid  para 51

[10] ibid para 54

[11] Copyright Act (n 6)

[12] ibid s. 106

[13] Pleadings (n 1) para 60

[14] ibid para 59

[15] ibid paras 61-63