Barely Legally

Confessions of a Moot Court Bailiff

Feline Maximization

Here’s an interesting tale of copyright gone weird from Ars Technica. The interminable CBS sitcom The Big Bang Theory is being sued for copyright infringement of a children’s poem called “Soft Kitty”. The poem reads, in its entirety:

warm kitty, soft kitty little ball of fur sleepy kitty, happy kitty purr purr purr

Really? Fifteen words? Three of which are “purr” and four are “kitty?” That has to be some kind of record. There’s no way you can copyright that, right?

Well, yes. You can copyright a haiku. You can copyright surprisingly short things. The only real requirements are that you write it down and that it’s creative. Federal courts have interpreted the creativity requirement to imply some minimum length: you can’t copyright a poem which is one word long. There’s nothing creative about reciting a lone word. But a super long poem doesn’t guarantee copyright either; a list of every word in the English language in alphabetical order isn’t creative. It’s a lousy dictionary.

You’ve Got to be Kidding Meow

So yes, the Soft Kitty lyrics are copyrightable. Heck, they’re supposed to be the words to a children’s song, so it makes sense that they’re not Ulysses.

This lawsuit isn’t over whether the song is too simple for copyright, though. Here’s how Ars describes the substance of the complaint:

The heirs to a poet who claim their mother wrote a poem popularized in the TV series The Big Bang Theory are suing CBS and others connected to the sitcom for allegedly using the “soft kitty” lyrics without their permission on at least eight episodes.

The lawsuit, filed last Wednesday in a New York federal court, claims that the lyrics beginning with “Soft kitty, warm kitty” were created by Edith Newlin some eight decades ago and published in 1937 in a book called Songs for the Nursery School. The suit says the book’s copyright registration was renewed in 1964, which “served also to register and renew” Newlin’s copyright.

“Defendants have used the Soft Kitty Lyrics without authorization in their entirety as an emblematic feature of The Big Bang Theory, contributing materially to the program’s enormous success, and in promotion and advertising for the show,” according to the suit (PDF). “Defendants have also used the Soft Kitty Lyrics in their entirety on a wide range of merchandise items, from t-shirts to air fresheners, as part of one of the largest global licensing and merchandising programs ever mounted for a live-action television series.”

You catch that? The poem was published in a songbook in 1937, after being written in 1933. Sliced bread was less than a decade old at point. A gallon of milk cost a third of a penny, and your average dinosaur weighed just under six tons. It’s so far removed from our time and our world that it seems impossible to imagine a good reason for this poem to still be copyrighted today.

Funnily enough, originally it wouldn’t!

The very first American copyright act, passed in 1790, protected works for just fourteen years. An author could renew that for another fourteen years by sending a letter to the copyright office at the end of the first term.

Fourteen years! Copyright lasted for fourteen whole years, in a time when the only way to profit from your copyrighted poem or book or song was to get some moron with a horse to ride around ye old countryside and charge people for a copy.

Basically, if authors get to be the only ones to make money off their creative works for a while, more people will make more stuff. Then, after the author has made all his or her money from the work, the work becomes public domain and everyone gets to use it for free forever. This trade-off dates back to the very first law creating copyright for authors, England’s Statute of Anne in 1710, which was passed:

“for the Encouragement of Learned Men to Compose and Write useful Books”

The Statute of Anne gave authors fourteen years (plus another fourteen, if they asked for an extension) to make their money back; this Encouragement of Learned Men meant they would Compose and Write more than they would otherwise, whilst any idiot with a horse could run around and sell bootlegged copies of your useful Books. When it came time to come up with a copyright law, America—itself invented the previous year—followed the English model: fourteen years plus another fourteen years, BYOHorse, etc.

But Meow

Flash forward to 2016, and copyright lasts for seventy years after the author dies. You write a book and you get to spend the rest of your life riding around on a horse selling copies of it. Then your grandkids get to spend most of their lives on horses, doing the same thing. The family business turns into “riding around on a horse selling Grandpa’s book.”

Ah, just kidding. It’s 2016; you put your book online and anyone anywhere can download it any time they want. If you’re lucky, some of these downloads might even be paid transactions! (That whole “instantly duplicate for free” thing is kind of a double-edged sword.) The good news is that you don’t have to invest a lot of money to get your book published, or buy a horse or anything.

Sidebar: isn’t that kind of crazy, now that it’s so much easier to make and distribute copies of your stuff, that copyright could last a century longer? Authors deserve to make their money off their works, but that whole process happens way faster thanks to technology. The public used to get access to these works after a few decades, but every couple of decades, we tack on a couple of decades to copyright’s length.

So wait, the lady who wrote this Soft Kitty poem died in 2004. Does her copyright really last from 1933 to 2074? Not quite. Anything written before 1978 still goes by the “fixed number of years from publication” version of copyright, not the “seventy years after you die” version. But that fixed number is now 95 years; Soft Kitty was written in 1933, so Newlin’s copyright will last until 2028.

Not everything from the 1930s is still copyrighted: the copyright extension Congress passed in 1998 wasn’t retroactive, so in order for Soft Kitty to get that extra-long copyright, it would have had to be copyrighted in 1998. Under the terms of the 1909 Copyright Act, Newlin got one 28-year term and one extension of 28 years. Now, 1933 + 28 + 28 = 1989, so this lawsuit should be tossed out instantly, right? Soft Kitty hit the public domain many years before the 1998 law, so it’s not copyrighted, right?

Almost. Congress has extended copyright a lot. In a 1976 law extending copyright, they increased the amount of time a renewal was worth, from 28 to 47 years. So that renewal that Newlin filed was worth an extra 19 years, and Soft Kitty was indeed copyrighted by the time 1998 rolled around. Who knew arbitrarily and retroactively adding decades onto copyrights’ duration could make things complicated?

Let’s Make a Deal

The Big Bang Theory folks, to their credit, got a license from the publishers of the songbook to use the Soft Kitty song. But there are some issues with that.

First, the songbook folks can’t license the music to the show, because they don’t own the copyright to the music. According to the songbook itself (See page 21), the music is an English folk tune, which is another way of saying “public domain.” The song itself can still be copyrighted, but the parts of copyrighted works which are public domain can’t ever be copyrighted. For example, a character who is a brilliant detective named Sherlock Holmes is public domain, but the text of the speech Sherlock gives at Watson’s wedding in season 3, episode 2 of the BBC show is copyrighted.

Second, the songbook folks don’t own the lyrics to Soft Kitty: the words were licensed to them by Newlin. It’s possible that the license agreement allowed the songbook folks to sub-license the work to other parties; that’s a thing licenses can do. Without reading the license (and I haven’t), there’s no way to know whether that’s the case.

Well, that’s nice and tidy, right? The Big Bang Theory folks bought a license for the song, but the music is public domain and the words are still owned by Newlin’s family. That’s reasonably straightforward, and this is an easy win for the Newlin family, right?

Save Your Fork, There’s Pie

But here’s a fun wrinkle: remember when I said that Newlin’s copyright renewal lasted for 47 years, so it qualified for Congress extending it into the year 2028?

Welllll… the complaint doesn’t say that Newlin actually renewed her copyright in Soft Kitty. The lawsuit says that the songbook folks renewed the copyright in their book, which in turn renewed Newlin’s copyright in Soft Kitty. However, according to the 1909 Copyright Act, it’s the author’s (or the author’s heirs) responsibility to renew their copyright. Other people can’t generally renew it for the author, with four specific exceptions. These are outlined in the US Copyright Office’s handy guide to renewal of copyright:

  1. Posthumous Work: the author died before the work was published, so the copyright belongs to someone else. Newlin died in 2004, so this one doesn’t apply at all.
  2. Composite Work: the author worked with lots of people to help produce this thing, like a magazine or an encyclopedia. The lawsuit notes that Newlin wrote the poem in 1933 it was licensed to the songbook folks in 1937, so it doesn’t seem like they all sat down together to write a book. This exception doesn’t apply.
  3. Corporate Work: the work is copyrighted by a corporation, but not if the corporation is an assignee or licensee. Assignment is the transfer of copyright from the author to someone else, and a license is permission to use copyrighted work. Whether or not the songbook folks were/are a corporation, they were licensed the right to use this music, so this exception doesn’t apply, either.
  4. Work for Hire: the author was paid to create something, so the employer owns the copyright. Again, Newlin wrote Soft Kitty four years before the book was published, so she probably wrote it on her own. This exception doesn’t apply.

So, uh, I’m not exactly sure how the plaintiffs plan to win this one. If Newlin had renewed the copyright herself, the complaint would say so. But instead, it goes with the frankly tenuous logic of “the songbook was renewed, so Soft Kitty was also renewed.” That’s a tough argument, especially given those four inapplicable exemptions. I’m far from an expert on the 1909 Copyright Act, so there could be some case law somewhere which helps out these plaintiffs. If there is, the complaint doesn’t mention it.

Loose Ends

The complaint does helpfully include a copy of both the original copyright registration of the songbook in 1937, as well as the copyright renewal of the songbook in 1964. Now, I’m not some fancy big-city lawyer, but neither of those documents so much as mentions Newlin; even if the songbook folks could legally renew Soft Kitty’s copyright on Newlin’s behalf (and I don’t think they could), it’s hard to understand how that would work if they didn’t actually mention her or her poem.

As a matter of public policy, it’s absurd to ask people who want use an old poem to research whether the author renewed their copyright, and also examine every licensee’s renewal of that copyright which may or may not mention the author or the copyright. Even if we asked people to do all that homework, there’s no public registry of every single time someone licensed a copyrighted work from every author. It’s the legal equivalent of asking how many woodchucks would own nunchucks.

Realistically, the Big Bang Theory folks made the smart play by getting a license from the songbook folks, even though the songbook folks almost certainly didn’t have any copyright interest to give. That’s just hedging your bets. And it also shows good faith, which is helpful for policy arguments and reducing copyright infringement penalties.

I’d like to see this go to trial to watch how this all plays out, but lawsuits like this scream settlement. But hey, like all good childrens’ songs, at least we learned something.