This Kitty is Roaring about Copyrights

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 15, 2021

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One of the challenges in using copyrighted material is that on occasion you do everything you can to try and do things “the right way,” yet you still get sued.

That appears to be the case for Warner Brothers’ use of the lyrics to “Soft Kitty” on the popular TV comedy “Big Bang Theory.”

Background

For those not familiar with the show, whenever Sheldon (a scientist played by Jim Parsons) is sick, he asks whoever is taking care of him to sing “Soft Kitty” to him.

The song has become famous. CBS sells merchandise with the lyrics on its website. You can buy “Soft Kitty” pajamas, “Soft Kitty” coffee mugs, t-shirts, robes, watches, even a stuffed “Soft Kitty.”

If you want to see what the fuss is about, you can see one of the other characters on the show, Penny, singing the song to Sheldon on YouTube.

The lyrics are very similar — identical with a few small changes in word order — to a poem called “Warm Kitty,” written by nursery school teacher Edith Newlin in 1933. The rhyme was published in a book called “Songs for the Nursery School” by Willis Music Company (WMC) in 1937.

WMC promptly registered a copyright for the book as a collection. The book includes an acknowledgement that permission to use the copyrighted work “Warm Kitty” was granted by Newlin.

In 2007, Warner entered into a licensing agreement with WMC to use the lyrics to Warm Kitty.

On the WMC website there’s a statement from WMC President Kevin Cranley saying, “Warner Brothers and I worked together to secure the rights [to the Soft Kitty Lyrics] for the show and they have been using the song ever since.”

Just one problem: it appears that WMC never did take any action to secure those rights. In 2015 Newlin’s daughter, Margaret Chase Perry, filed a lawsuit in federal court in New York alleging a copyright violation. The lawsuit lists not only Warner as a defendant, but also WMC and broadcasters (CBS, Turner, Fox) and the show’s producers, Chuck Lorre Productions.

Possible Defenses

Without knowing all the facts in the case, it’s a little hard to say exactly how it will come out.

There are a couple of different paths the defendants could take. They could challenge the copyright itself. If they can show that the rhyme was not original to Edith Newlin, Newlin’s heirs have no case.

They could show that WMC’s original agreement with Newlin gave WMC the right to sublicense, in which case Newlin has no claim against anyone.

Even if the copyright is found valid and WMC is found NOT to have had the right to sublicense, Warner and everyone other than WMC may be able to avoid liability. Licensing agreements very commonly contain warranty and/or indemnification clauses, so it could well be that WMC is the party on the hook for royalties and damages.

Caution

When using copyrighted material, if you’re licensing the material from an entity other than the author, it’s a good idea to verify that whoever you’re signing the agreement with does actually have the right to enter into that agreement with you. And it’s good to have an indemnification clause as a backup, just in case.

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