Sadly for plaintiff is this case, there is no “Bazinga” at the end of the judge’s decision. CBS was sued by the creators of “Warm Kitty,” a lullaby frequently heard on The Big Bang Theory, for allegedly using the song and then producing merchandise bearing the copyrighted phrase without permission but a judge has dismissed the case.
In Season 1, Episode 11 entitled “The Pancake Butter Anomaly”, a sick Sheldon begs Penny to rub some Vicks VapoRub on his chest and demands that she sing “Warm Kitty” to him, a song his mother always sang to him when he was sick. The lyrics are as follows: “Soft kitty, warm kitty, little ball of fur; Sleepy kitty, happy kitty, purr! purr! purr!” And magically Sheldon is soothed. The song became such a hit that has been sung in eight more episodes and CBS began distributing merchandise bearing the name of the song and lyrics. The CBS Store sells such products as t-shirts, pajamas and even a watch that bear the name “Warm Kitty” or the lyrics.
In a lawsuit filed in December 2015, plaintiffs claim that Edwin Newlin was the author of the original poem that was created in 1933 and first published as a musical piece 1937. Plaintiffs claimed the copyright to the poem is now owned by the heirs of the deceased Newlin. In 2007, the production company for The Big Bang Theory, WB, approached the publisher of the book seeking permission to use the musical version of the song. The book publisher gave permission, without consulting Newlin, to use the song via a licensing agreement but the heirs of Newlin claim that they still own the copyright to the song and not the book publisher. It even states in the licensing agreement that Newlin is the author and owner of the song but plaintiffs claim that all parties purposefully or recklessly ignored this statement about ownership. Plaintiffs sued for copyright infringement and want CBS enjoined from further using the song, damages and attorneys’ fees.
The court just issued its decision dismissing the case. The ruling is incredibly complicated and will make your shake your head but here is a quick summary: since the song was first created in 1933, it was covered by the old Copyright Act of 1909. Unlike the “new” Copyright Act of 1976, which substantially extends the term of a copyright, the Copyright Act of 1909 grants an author an initial 28 year term. Without proof of renewal of the copyright, the work would fall into the public domain. The court held that there was no proof of renewal and plaintiffs were therefore unable to sustain their case for copyright infringement.
So CBS is in the clear and won’t have to pay damages. Now, maybe, we will hear to song in upcoming episodes of the show which was recently renewed for another two seasons.