A lawsuit over the rights to a lullaby sung on The Big Bang Theory is challenging the ownership of “Soft Kitty,” which has been sung several times on the show whenever Sheldon needs comforting. The song was so popular that CBS built a merchandising campaign around it, featuring Soft Kitty T-shirts, plush toys, key chains, coffee mugs and hoodies.
Lyrics for the song “Warm Kitty” were written in 1937 by the late-poet Edith Newlin, and now her daughters, Margaret Perry and Ellen Chase, are saying CBS has to pay up. In their suit, filed today in federal court in Manhattan, they say that “The Soft Kitty lyrics have played a prominent role in the development and portrayal of one of the central characters in the program.”
The song was first sung on show’s “The Pancake Batter Anomaly” episode in 2008, and has subsequently been sung on “The Vegan Renormalization,” “The Electric Can Opener Fluctuation,” “The Adhesive Duck Deficiency,” “The Cruciferous Vegetable Amplification,” “The Rhinitis Revelation,” “The Proton Resurgence” and “The Anxiety Optimization” episodes.
Warner Bros., which produces the show, declined comment, but Willis Music, the music publisher that bought the book the song appeared in nearly 80 years ago, says it properly and legally licensed the song to Warner Bros. for the TV series. ASCAP, the performance rights organization, lists Warner-Olive Music, a subsidiary of the Warner Music Group, as the song’s publisher, suggesting that the rights were transferred from Willis Music.
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“In 1937, we published a book called ‘Songs for the Nursery School,’ and we sold tens of thousands of copies,” wrote Willis Music owner Kevin Cranley on the company’s website. “It is a hardbound book of over 150 songs for children. The book was written by Laura Pendleton MacCarteney. In that book on page 27 is Warm Kitty. Warner Brothers and I worked together to secure the rights for the show The Big Bang Theory and they have been using the song ever since. The writers wanted the song because one of them remembered it as a child. They also wanted to slightly change the words and I’m really not sure of the reason for that change.”
In Newlin’s version, the lyrics are “Warm kitty, soft kitty, little ball of fur; Happy kitty, sleepy kitty, purr! purr! purr!” The Big Bang Theory’s version is slightly altered: “Soft kitty, warm kitty, little ball of fur; Sleepy kitty, happy kitty, purr! purr! purr!” The music was adapted from an English folk tune.
Contacted by Deadline, Cranley said he was not aware of the suit but said he’d look into it. The key legal issue in the case could come down to whether the publisher, by buying the rights to MacCarteney’s book, also acquired the rights to the songs contained in it. If not, Newlin’s daughters could have a case.
But if Willis Music, by buying the book, also acquired the rights to all of the songs contained in it, the daughters will probably lose, because traditionally, in most publishing agreements, songwriters are required to assign the copyrights of their lyrics to the publisher.
In this case, as in all copyright disputes, it will come down to the wording of the contract – or contracts. Specifically, when Newlin gave MacCarteney the right to publish her song in her book, did she also assign the copyright of her song to the book publisher, which would then have had the right transfer the copyright to Warner Bros. for use in The Big Bang Theory? And if not, will Newlin’s heirs also be entitled to share in the merchandising dollars as well?
The suit notes that the Soft Kitty lyrics have been used in show advertising, for viewer contests and to sell poem-inspired T-shirts, mugs, and hoodies. “The Soft Kitty Lyrics are among the best-known and most popular aspects of ‘The Big Bang Theory,'” the lawsuit states, as reported by the Associated Press. “They have become a signature and emblematic feature of the show and a central part of the show’s promotion.”
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