Producers of the hit TV show The Big Bang Theory got a legal ‘bazinga’ in a new lawsuit contesting the show’s allegedly unauthorized use of nursery rhyme lyrics written eight decades ago by a New Hampshire school teacher. The lawsuit, filed in New York federal court by the daughters of Edith Newlin on behalf of their late mother’s estate, asserts that Ms. Newlin held the lyrical copyright, and that the show never bothered to seek permission from her estate to use the now famous Soft Kitty lyrics. The lawsuit asserts the defendants profited from such use not only from the show on at least eight episodes, but also through lucrative merchandising including T-shirts, toys and other products.This case demonstrates interesting problems in dealing with copyright protection. The defendants apparently thought they negotiated a proper license to use the lyrics from Willis Music, a Kentucky-based company which published a compilation of ‘Songs for the Nursery School’ in 1937. Most lyrical and music copyrights are assigned to publishers, so it may have been understandable for the show’s producers to believe they obtained necessary permission. However, Ms. Newlin’s estate is asserting that Willis Music only had the limited right to include the lyrics in that book but did not acquire the underlying copyright from Edith Newlin. If that assertion is correct, these defendants, which include sophisticated companies such as Warner Brothers, Turner Broadcasting and CBS, may have goofed and did not have the right to have Sheldon Leonard and company sing those lyrics.
Viewers should stand by to hear what defenses these companies assert to the lawsuit, and whether they try to pass some of the blame on possible copyright confusion to the publisher, even though Ms. Newlin’s estate asserts that Willis never claimed it held the copyright. In the meantime, this lawsuit can be considered a wake up call on how important it is to ensure proper use of intellectual property protected by copyright. Otherwise, you may need Penny singing you a comforting lullaby – and make sure her song has nothing to do with a soft kitty or little ball of fur.
Seth Berenzweig is a managing partner at Berenzweig Leonard, a DC region business law firm that includes a music, media and entertainment practice.
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