“Soft kitty warm kitty little ball of fur” – to fans of the hit television show The Big Bang Theory, this is the famous song that Sheldon Cooper requests be sung to him when he is sick. The show’s version of the song has been included in a number of episodes and can be found on merchandise, such as clothing, magnets and toys. The question which is now being asked is whether the show had the right to use the lyrics.
The heirs of Edith Newlin’s estate have brought a lawsuit claiming that the show’s use of this song violates the copyright obtained with respect to her poem “Soft Kitty”. Edith wrote “Soft Kitty” in the 1930s. Her heirs are not only seeking damages, but also injunctions against further acts of infringement.
Edith’s heirs are claiming that,
Willis Music gave the show’s producers permission to use the song, which credited Newlin for the lyrics, without getting permission from Newlin’s heirs…Newlin’s poem reads: ‘Warm kitty, soft kitty/Little ball of fur/Sleepy kitty, happy kitty/Purr! Purr! Purr!’ The show uses these lyrics: ‘Soft Kitty, warm kitty/Little ball of fur/Happy kitty, sleepy kitty/Purr! Purr! Purr!'(1)
You’ll note that the words “warm” and “soft” have been switched around, as have the words “happy” and “sleepy”.(2)
In Canada, the Copyright Act provides that, subject to certain exceptions, copyright lasts for the author of the work’s lifetime, the remainder of the calendar year in which such author dies, and for 50 years following the end of the calendar year in which the author dies. Edith Newlin died in 2004, meaning that we would be well within the 50 year period.
Regardless of the fact that this lawsuit was not filed in Canada, it serves to remind us of the importance of considering who owns the intellectual property rights to a work (such as a poem) and to obtain the proper permissions before using such work. Failure to do so could have far reaching implications.
Further, if you are the owner of certain intellectual property rights, you should consider whether such rights should be transferred in a specific way upon your death. If so, it is important that you discuss this with your lawyer during the process of drafting your Will.
(2) For a discussion of a Canadian case of copyright infringement, visit my previous blog post, “Cinar Corporation v Robinson – A recent case of copyright infringement” at https://www.millsandmills.ca/blog/business-law/cinar-corporation-v-robinson-a-recent-case-of-copyright-infringement/