The Nuisance Suit Idiocy

Always go for a photo of Penny, no matter how irrelevant…

Though it’s no longer as funny as when it started, The Big Bang Theory continues to be my favourite American sitcom. It’s geek humour, and I’m a geek (as you may have worked out by now): I understand what they’re saying and thinking. And I have watched the earlier episodes at least half a dozen times now and still laugh out loud at the jokes, which is more than I can say for even Fawlty Towers or The Office.

Speaking of Big Bang Theory jokes, the show has suddenly been hit, halfway through its ninth season, with a lawsuit claiming damages, profits and legal costs involved in a breach of, I assume, copyright. It’s all to do with Soft Kitty.

For those not familiar with BBT, Soft Kitty, or rather ‘Soft Kitty’ is a two-line lullaby that Sheldon Cooper sometimes requires to send him to sleep when he’s stressed. It used to be sung to him by his ‘Mee-Maw’ (grandmother) when he was little.

Until I read about this suit, I had assumed the lullaby was created for the show, but in fact it was a genuine, pre-existing song, written in 1937 by schoolteacher Edith Newlan, and published by Kentucky-based Willis Music. The Producers acquired the rights to use the lullaby from Willis Music.

Suddenly, nine-and-a-half years after the show debuted and about five years into its reign as the most popular sitcom in America, this lawsuit emerges, brought by Ellen Newlin Chase and Margaret Chase Perry, the daughters of Ellen Newlin, in whom the copyright vested on her death in 2004 (three years before the show first appeared).

Mrs Chase and Mrs Perry, presumably as the result of a particularly slow-burning urge for justice, fairness and decency, are seeking not only the aforementioned ‘damages, profits and legal costs’ but also an immediate injunction preventing the use of ‘Soft Kitty’ in the show until they have been properly compensated for this unjust, unconscionable and horrendous breaching of their rights.

What makes this into such a massive joke is not the length of time they’ve waited before asserting their claim, but the typically overblown terms in which the suit has been brought. Mrs Chase and Mrs Perry claim that ‘The Soft Kitty lyrics are among the best-known and most popular aspects of The Big Bang Theory. They have become a signature and emblematic feature of the show and a central part of the show’s promotion.’

The Big Bang Theory will, early in 2016, broadcast its 200th episode. ‘Soft Kitty’ has been sung on the show ‘at least eight times’. If we are generous and extend that to nine, that would make once a season. ‘A signature and emblematic feature of the show’? In whose Universe?

To be serious about the suit, given that I have a legal background, I think I can make a pretty good guess at the situation (allowing for the fact that I am not versed in American law). Willis Music are the publishers of the song. As such, they would be under a duty to Mrs Newlin, and her heirs, to manage the song on her/their behalf. This would involve the commercial exploitation of the song at the best available price, in addition to resisting its misappropriation without consent. The publishing contract would, in effect, make Willis Music the agent of Mrs Newlin and entitled to make commercial decisions on her behalf. Such as selling the rights to use the song to a tyro sitcom which may or may not succeed.

But The Big Bang Theory succeeds, massively, becoming a tremendous hit. All licensable aspects of the show’s tropes and memes are exploited, including, but certainly not limited to the ‘Soft Kitty’ lyrics. One assumes that the appropriate copyright notice is affixed to all such items, because if it isn’t, serious shit will arrive on the doorstep of CBS et al.

And one also assumes that, if Willis Music were doing their job properly, the contract would have either included or reserved the appropriate rights to income based on licensing the song.

But that was then, when The Big Bang Theory was a twice-made pilot, a mere hopeful among that year’s crop of would-be TV series. Now it makes millions, and one assumes that Mrs Chase and Mrs Perry – either independently or under the influence of predatory lawyers – have decided that they’re just not getting their ‘fair share’ from their late mother’s composition, and are going for broke.

(As an aside: let me make it plain that I have always believed, and still believe, that the creator should have the primary interest in, and a proper entitlement to payment from the use of their creation, and that goes for their heirs – especially when it’s family – for as long as copyright endures. And I’m in support of the ladies if, and only if, they are being improperly denied what is due to them. But carrying on as if ‘Soft Kitty’ is the be-all and end-all of the programme when it’s no more than a minor and charming element, is risible.)

There are two possibilities here: that Willis Music did a crap job on the contract selling the rights to ‘Soft Kitty’ and the ladies are being grossly underpaid for what the song is genuinely worth – bearing in mind that that song is only worth any elevated value because of The Big Bang Theory – or that the contracts are all fair and reasonable and proper and this is a nuisance suit.

If it’s the first of these, then the joke’s off and thy should get a fair deal. But, and I am likely to be prejudiced here because I love the show, I strongly suspect the latter. After all, if Mrs Chase and Mrs Parry have a case, why are they only bringing it now? When the first suggestion has been made of a possible end to the show, after season 10?

But ‘a signature and emblematic feature of the show and a central part of the show’s promotion’? That is to laugh.

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