Copyright litigation over the use of "Soft Kitty" in "The Big Bang Theory"

There is now a copyright infringement lawsuit relating to the use of "Soft Kitty" in the CBS show The Big Bang Theory.

From the TIME magazine post Lawsuit Claims Big Bang Theory‘s ‘Soft Kitty’ Is Copyright Infringement:


Ellen Newlin Chase and Margaret Chase Perry have filed a lawsuit against CBS, Warner Bros. and other production and media companies over the use of lyrics written by their mother, the poet Edith Newlin, the New York Times reports. In 1937, her poem published in a book called Songs for the Nursery School included all the words from Sheldon’s lullaby, with only “soft/warm” and “happy/sleepy” switched in position.



TIME discusses the theory of infringement, which presumably would be under the 1909 Copyright Act:


The sisters say that the publisher of the book, Willis Music (a defendant in the suit) registered the collection with the Copyright Office in 1937, and renewed the copyright in 1964. Under applicable laws, the suit claims that this “served also to register and renew Edith Newlin’s copyright in the Soft Kitty Lyrics.” When Newlin died in 2004, her daughters say they became the sole owners of that copyright. However, when producers of the show sought to use the song, they allegedly negotiated only with Willis Music, not with the sisters. Now, the sisters are seeking damages from one of the most-watched sitcoms of the last decade.



One notes the 1909 Copyright Act was repealed and superseded by the Copyright Act of 1976, but it remains effective for copyrighted works created before the Copyright Act of 1976 went into effect in January 1, 1978. It allowed for works to be copyrighted for a period of 28 years from the date of publication. The copyrighted work could be renewed once for a second term of equal value.

As general guidelines:


Federal standards for copyright duration differ substantially
under the 1909 act compared with the 1976 act because
of the renewal term contained in the 1909 act. Under the
1909 act, federal copyright was secured on the date a work
was published or, for unpublished works, on the date of
registration. A copyright lasted for a first term of 28 years
from the date it was secured. The copyright was eligible
for renewal during the final, that is, 28th year, of the first
term. If renewed, the copyright was extended for a second,
or renewal, term of 28 years. If it was not renewed, the
copyright expired at the end of the first 28-year term, and
the work is no longer protected by copyright. The term of
copyright for works published with a year date in the notice
that is earlier than the actual date of publication is computed
from the year date in the copyright notice.



The copyright discussed in the above, renewed in 1964, would have expired
28 years later in 1992, and the covered work would have entered the
public domain in 1992.

Also, the 1909 law mentions that the word "author" shall include an employer for works made
for hire.

Recall the issues with "derivative work" in the matter of
"It's a Wonderful Life."

**The coverage by the New York Times included the text


At times, the credits said the song was written by Bill Prady, a principal of Chuck Lorre Productions, one of the show’s producers, according to the lawsuit.



As wikipedia notes of the Supreme Court Dastar case: The Court reasoned that although the Lanham Act forbids a reverse passing off, this rule regarding the misuse of trademarks is trumped by the fact that once a copyrighted work (or, for that matter, a patented invention) passes into the public domain, anyone in the public may do anything they want with the work, with or without attribution to the author.