The Big Bang Theory's Soft Kitty Song Led To A Lawsuit

In the "The Big Bang Theory" episode "The Pancake Batter Anomaly" (March 21, 2008), the ordinarily snippy hypochondriac Sheldon (Jim Parsons) catches a severe cold, unwittingly passed to him from the ever-healthy Penny (Kaley Cuoco). Sheldon's roommates take the opportunity to flee the apartment, and Penny is therefore roped into caring for Sheldon. Penny soon learns how odd Sheldon's illness requests are. For one, he insists she rub Vick's VapoRub on his chest, which she begrudgingly agrees to. As she does, however, Sheldon demands she also sing one of his favorite childhood lullabies, a Polish folk song called "Soft Kitty." He sings it for her, and she attempts to follow along. Penny is immensely annoyed.

The song immediately became beloved by "Bang's" many fans, however, and it would be sung in eight additional episodes of the series, sometimes under very bizarre circumstances. "Soft Kitty" is one of the show's more notable running gags. It even appeared in two episode of the "Big Bang Theory" spinoff "Young Sheldon." 

As it so happens, "Soft Kitty" is derived from an actual Polish folk song called "Wlazł Kotek Na Płotek" or "The Kitten Climbed the Fence." The earliest published editions of ""Wlazł Kotek Na Płotek," dating to the 1850s, credited Oskar Kolberg as the lyricist and Stanisław Moniuszko as the music writer. The lyrics and melody, as with any folk tune, become slightly different from generation to generation and from region to region. 

One of the earlier American publications of the song renamed it as "Warm Kitty," and the new English lyrics were published in a 1937 songbook, "Songs for the Nursery School." The book was published by the Willis Music Company, and the "Kitty" lyrics were credited to a poet named Edith Newlin. It was that 1937 songbook that got "The Big Bang Theory" in some legal trouble. According to Deadline, the makers of "Bang" were sued for copyright infringement, accused of using a near-identical version of "Warm Kitty" without permission.

According to the 2015 Deadline report, Margaret Perry and Ellen Chase, the daughters of Edith Newlin, filed a suit in Manhattan, stating that the writers of "The Big Bang Theory" used "Warm Kitty" without permission, noting that their mother's song ended up becoming vital to the series. In their brief, they said that "The 'Soft Kitty' lyrics have played a prominent role in the development and portrayal of one of the central characters in the program." Newlin, however, wasn't credited, and Newlin's estate wasn't properly compensated. 

Perry and Chase, however, had an uphill battle. The Willis Music Company was the official copyright owner of all the music printed in "Songs for the Nursery School," and they said that they did indeed legally and deliberately license "Warm Kitty" to Warner Bros. (who owns "The Big Bang Theory"). Everything, it seems, was above-board. In 2016, they even printed the following on their website:

"In 1937, we published a book called 'Songs for the Nursery School' and we sold tens of thousands of copies. It is a hardbound book of over 150 songs for children. The book was written by Laura Pendleton MacCarteney. In that book on page 27 is 'Warm Kitty.' [...] Warner Brothers and [Willis] worked together to secure the rights for the show 'The Big Bang Theory' and they have been using the song ever since. The writers wanted the song because one of them remembered it as a child. They also wanted to slightly change the words [...]."

Perry and Chase maintained in their suit, however, that their mother retained the copyright to "Warm Kitty," and that Willis Music didn't have the legal right to license the lyrics. Additionally, the makers of "Big Bang" used "Soft Kitty" in marketing materials, which Perry and Chase felt were definitely not part of any legal deal. 

Unfortunately for Perry and Chase, the case (Chase v. Warner Brothers Entm't, Inc.) was eventually dismissed. According to a 2017 report in Reuters, the two plaintiffs were unable to prove that they had any kind of legal holding on the lyrics to "Warm Kitty." According to all the paperwork, Willis owned the song and could license it however they pleased.

Edith Newlin, the case stated, was working as a nursery school teacher in 1930 when she was approached by author Laura Pendleton MacCarteney about writing a poem about a kitten for a book of lullabies she wanted to publish. Newlin agreed, wrote the "Warm Kitty" lyrics, and turned them over to MacCarteney. The book was published with all the appropriate legal language, stating that Willis Music was the owner of all the songs therein. There is no record in the case of how much Newlin was paid for her work. MacCarteney, however, also published an acknowledgement page, wherein Newlin, along with several other songwriters, were credited. The book thanked those "who have so kindly given permission to use the respective copyrights in the preparation of this book." 

The melody, meanwhile, was old enough to have entered the public domain. So the makers of "The Big Bang Theory" did everything by the rules. 

But perhaps fans of "The Big Bang Theory" should pause to at least learn the name of Edith Newlin as the original lyricist for one of the show's more notable song-related jokes. If you ever sang the song to your own kids, know that Newlin was a big reason why you know the old Polish folk lullaby.