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Chase v. Warner Bros Entertainment, Inc.

In dispute over song “Warm Kitty” used in TV show “The Big Bang Theory,” district court dismisses copyright infringement action brought by daughters of song’s author, holding that copyright to the song’s lyrics had not been properly renewed and were in public domain.

Ellen Newlin Chase and Margaret Chase Perry, the daughters and heirs of children’s poem author Edith Newlin, filed a copyright infringement suit against defendants Warner Bros. Entertainment Inc., Warner Bros. Consumer Products Inc., Warner-Olive Music LLC, Warner Bros. Home Entertainment Inc., Chuck Lorre Productions Inc., CBS Corp., CBS Consumer Products Inc., Turner Broadcasting System Inc., Fox Broadcasting Co., Fox Television Stations Inc., Ripple Junction Design Co. and The Willis Music Co. Plaintiffs alleged that the defendants infringed the copyright in a musical composition written by Newlin in the 1930s called “Warm Kitty” by using a version of the song in the hit TV sitcom “The Big Bang Theory.”  

“Warm Kitty” was originally published in 1937 by Willis Music, with Edith Newlin’s approval, as part of a compilation titled “Songs for the Nursery School.” In the 2000s, the defendants began using a modified version of the song on “The Big Bang Theory” without plaintiffs’ authorization, prompting them to bring the copyright infringement action in 2015. The defendants moved to dismiss, contending that the plaintiffs did not have a valid copyright in the song because it had fallen into the public domain.

As “Warm Kitty” was published in 1937, the work is governed by the Copyright Act of 1909, which grants an author an initial 28-year copyright term, after which the work falls into the public domain unless a timely renewal is filed. In 1964, Willis Music, the acknowledged owner and proprietor of the “Songs for the Nursery School” compilation, timely renewed its registration in the compilation. However, the copyright in “Warm Kitty” itself was not renewed. On defendants’ motion to dismiss, the court explained, “the only issue is whether Willis Music’s 1964 renewal of the registration for Songs for the Nursery School also renewed Newlin’s copyright in the [song] lyrics.”

The court agreed with defendants that it did not. Specifically, the court relied on the text of Section 24 of the 1909 Copyright Act to hold that only the author of any particular contribution to a composite work, rather than the proprietor or owner of the composite work itself, had the right to renew the copyright registration to the contribution. In other words, Section 24 “only granted a proprietor [of the composite work] the right to renew copyrights in the composite work itself, i.e. the collection, arrangement, and display of its component parts, rather than the individual contributions or components.” With respect to the individual component works themselves, Section 24 granted “the individual author the right to renew his contributions.” Thus relying on the text of the statute, and two prior case precedents, the court held that Willis Music’s renewal of the composite work in 1964 did not effect a renewal of “Warm Kitty,” which thus fell into the public domain. Accordingly, the court dismissed the action because plaintiffs could not allege copyright ownership.

Summary prepared by Wook Hwang and Ava Badiee