Oh, Sheldon, go ahead, sing the darn cat song

Court swats away suit over Warm Kitty, as sung on Big Bang Theory

Actor Jim Parsons has turned the misanthropic, mischievous, and often malevolent character of Sheldon Cooper, uber nerd and brilliant physicist, into not just an Emmy winner but also a million-dollar-an-episode recurring star part in a prime time network smash. Fans obsess about the adventure of Sheldon and his pointy-headed pals. But, hello, kitty, a federal judge in Manhattan has told Big Bang Theory aficionados they can rest easy about one of Sheldon’s signature musical quirks.

U.S. District Judge Naomi Reice Buchwald has dismissed a cat-and-mouse game of copyright infringement against the show. It had been hit with a suit by the holders of the rights to the lyrics of Warm Kitty. That’s a tune the two sister-plaintiff’s asserted their nursery school teacher-mom wrote decades ago, then protected in 1937. Eccentric Sheldon, whose idiosyncratic behavior often alienates him from friends and foes alike on the TV show, often sings a version of Kitty to himself to self-soothe.

His lyrics aren’t a carbon copy of the plaintiff’s song. But the sisters argued that the show failed to secure their permission to use the song and the lyrics were substantially similar enough to sue. What gave the judge paws about this cat scratch legal tiff?

A teacher’s work gets into a compendium

Ellen Newlin Chase and Margaret Chase Perry claimed in their suit that their mother, Edith Newlin, had penned Warm Kitty and saw to its publication in a compilation, Songs for the Nursery School. Willis Music Group published the compendium, compiled by another author who used all different songs and poems by others in the work. The plaintiffs claimed their mother was the original copyright holder. After Newlin’s death in 2004, the daughters, as heirs, argued that the copyright was personal property and was granted to them by a will.

The judge was un-purrrrr-suaded. She said the original lyrics, published as a poem, were part of a compilation. And the book’s publisher lacked the power to renew the copyright to just the teacher’s poem. Willis Music did renew the whole book’s copyright in 1964. But the bottom line on this legal kitty litter box: the book might have had some protections, but Warm Kitty had crept into the public domain years ago. And once a work enters this status, it cannot be “retrieved” and pulled back into copyright protection. Because the work was published in 1937, by the way, the 1909 Copyright Act governed in this case, and its pertinent Section 24, as her honor also padded on cat’s feet about in her opinion, “is hardly a model of clarity.” It can be as challenging as the directions for a piece of IKEA furniture. Ultimately, the judge swatted the issues around like a catnip mouse, dismissing the sister’s suit as Warner Brothers and a host of other defendants had asked.

Kitty’s ninth life?

During the production of television shows, as part of the legal clearance process, studio legal departments often will hire a research company to comb through scripts to scrutinize and research all material elements in every draft–character names, places, business names, products, songs written into the script, ad infinitum. The researchers then publish their findings in a report, which the studio’s legal representative will analyze and issue comments on. Counsel recommends what is “clear,” and what is “not clear,” based on factors such as: copyrights, the context and duration of protected materials use in a show, their oral and visual mention, and so forth.

Did Warm Kitty clamber through a legal crack or was she deemed an acceptable risk? Since she’s effectively out of the house and on the street now, that concern for now is moot. But here’s hoping she has a few other productive lives.