Is ‘Soft Kitty’ a Copycat?

You all know it, you’ve all heard it, you’ve all sung along to it. It’s the one true cure for Sheldon’s sickness, and arguably the twenty-first century’s answer to the legendary ‘Smelly Cat’. I am, of course, referring to the song ‘Soft Kitty’ from The Big Bang Theory. Indeed, the room was frighteningly quick to correct me when I attempted to the sing the lyrics at my film society’s pub quiz a week ago. So ingrained is our love for this lullaby that we imagine it to be as innocent as its purpose, and as such, we imagine it to be untouched by the law. However, a few months ago the unthinkable happened… Look at Sheldon’s face. Now look here. The makers of The Big Bang Theory were sued for copyright infringement in allegedly ‘stealing’ ‘Soft Kitty’… While you wait for a Bazinga! which may never arrive, allow me to explain the background to this intriguing story.

The song itself has been around for almost 90 years under the moniker ‘Warm Kitty’ and was created as a nursery rhyme in the 1930s. The original author, Edith Newlin, was a former schoolteacher and well-known children’s writer and poet from New Hampshire. Newlin wrote the lyrics which were later published with her permission in a book called Songs for the Nursery School. Interestingly, the nursery rhyme has been played for decades in Australia, and continues to be popular to this day.

It is clear that the origin of our feline friend goes back further than many initially would have thought. So why is it that on the credits of several episodes and items of merchandise the song can be seen attributed to Bill Prady, a Principal of Chuck Lorre Productions and one of the producers of The Big Bang Theory? In 2007, Kentucky-based Willis Music (the owner of the copyright of the original book containing the lyrics) supposedly made a deal with Warner Brothers, in order to transfer elements of the rights allowing them to be used in the show. Needless to say, Newlin’s daughters do not see it this way.

In the book of nursery rhymes, the lyrics to ‘Warm Kitty’ are credited to Newlin on the Acknowledgements page as well as on page 27. The book was registered in the US Copyright Office by Willis Music in 1937, and was later renewed in 1964. The lawsuit alleges that under the relevant US law at the time (the Copyright Act of 1909), this registration and renewal by consequence served to register and renew Newlin’s copyright in the ‘Soft Kitty’ lyrics as well. Despite Newlin’s passing in 2004, the suit alleges that the two daughters of Newlin, Ellen and Margaret, are now the exclusive owners of the copyright. They argue that Willis Music were not in any position to grant such rights in 2007, that the class of defendants in the suit had “not only wilfully infringed [the] Plaintiffs’ copyright, but they failed to credit… Newlin as the author”, whilst taking particular issue with the crediting of Bill Prady, one of the show’s producers.

The lawsuit itself is a 43-page document, containing around 22 pages of written argument, with 21 pages of attached ‘exhibits’, ranging from photos of Soft Kitty merchandise to original source documents for the song itself. Specifically the claim targets Warner Brothers, CBS, Fox Broadcasting Company and around half a dozen other broadcasting companies for “wilfully [infringing]” the Plaintiff’s copyrighted song lyrics, “by repeatedly using the lyrics in their entirety on… one of the world’s most popular television sitcoms”. Further, it cites the use as being “without authorisation”, but something that “[contributed] materially to the program’s enormous success and in promotion and advertising for the show… [especially] merchandise items”.

Apparently the daughters only became aware of the show’s ‘wilful infringement’ in 2014 and claimed that the permission of Newlin or her heirs was never sought by any of the defendants. Crucially, without such permission, any deals to obtain rights or authorisation could not have been lawful. The lawsuit is still at an early stage, yet, interestingly the issue of duration of copyright could be the fault of none other than Disney. In the US, the very first Mickey Mouse cartoon (Steamboat Willie in 1928) was expected to enter the public domain in 1984. However, Disney lobbied Congress to extend copyright law to a term of 75 years, before pursuing another extension in 1998, meaning that the works of 1923 “are now set to enter public domain in 2018”. Had ‘Warm Kitty’ been published a decade earlier, Sheldon could have slept easy knowing the song would have entered the public domain.

Of course, the claim before us is a US one, but how would the same claim fare in the present-day UK context? Under UK Copyright law, any such claim would now be handled through the Copyright, Designs and Patents Act of 1988. It is important to know that a song cannot in itself be protected; instead, one of the things that can be protected is the underlying literary work (the lyrics, as per section 3(1) of the CDPA 1988). Assuming the rights are registered after 1988, we would have to consider the relevant UK law on duration of copyright. For a literary work, this would be 70 years from the end of the calendar year in which the last remaining author of the work dies (s.12 CDPA 1988). Thus, UK protection would actually last 70 years from Newlin’s death in 2004 (if it were registered in 1937, The Copyright Act 1956 would have applied, and the duration would last for 50 years from Newlin’s death). Clearly, this is a very simple application without consideration of authorship, moral rights, or fair dealing arguments, but it could be said that the protection afforded here in the UK would do less to cure Sheldon’s headaches than what is currently available in the US. Nonetheless, the problem for the show’s producers would most likely remain in either jurisdiction.

Now, after making it through to the end of this story, I have just one thing to say to you… Bazinga! No, I’m sorry, that was cruel… This article was not one of Sheldon’s classic pranks. I checked and sadly everything is true. It’s also true that our beloved ‘Soft Kitty’ may actually be a copycat, but we can take comfort in the fact that at this early stage, we simply don’t know yet. With the lawsuit only recently being filed and with no official response from either of the defendants, we must reserve our judgment, if not for Sheldon’s sake, then for justice itself. After all, we’d never have blamed Smelly Cat, well rest assured Soft Kitty; it’s not your fault either.