Copyright Duration and Pre-Existing Works in TV and Film: The Soft Kitty Case and the Italian/European Framework

The Big Bang Theory used the song “Soft Kitty” repeatedly as a recurring narrative element throughout its run. In 2015, the daughters of Edith Newlin — who had written the original lyrics as a poem in the 1930s — sued Warner Bros. and Willis Music in the United States, arguing that the licence underlying the show’s use was defective. The Southern District Court of New York dismissed the claim, holding that Newlin had assigned her rights to Willis Music and the licensing chain was valid. The case looked, on its surface, like a tidy victory for the producers. But for film and television producers operating in Italy or the European Union, the underlying question — how long does copyright protection last, and which pre-existing works can safely be used in a production today? — is far from settled, and the 2025 Italian photograph reform has made it more complex than at any time in the past two decades.

This guide uses the Soft Kitty/Big Bang case as a starting point to explore the law of copyright duration for pre-existing works incorporated into television and film productions, the differences between the US (1909 Copyright Act and successors) and the European framework (Directive 2006/116/EC as amended), the specific Italian rules including the recent Law 182/2025 reform on photographs, and the practical implications for producers acquiring underlying rights for audiovisual productions. It is written for film and television producers, music supervisors, rights clearance professionals, and lawyers handling rights acquisition for productions distributed in Italian or European territory. For the broader chain-of-title context, see our guide to copyrightable elements in film.

The Soft Kitty case: facts and decision

The dispute centred on a short children’s song that became a recurring narrative element in The Big Bang Theory, sung to Sheldon Cooper to calm him when he was unwell. The lyrics were originally written by Edith Newlin in the 1930s as a poem titled “Warm Kitty”. The poem was published in the Songs for the Nursery School book in 1937 by Willis Music Group, with Newlin’s permission, and registered as a musical composition with the US Copyright Office. Willis Music renewed the copyright registration in 1964 under the renewal provisions of the 1909 US Copyright Act.

In December 2015, Newlin’s daughters — Ellen Newlin Chase and Margaret Chase Perry — filed suit against Warner Bros. Entertainment, Willis Music, and other defendants, arguing that the renewal of the copyright by Willis Music in 1964 would have revived Newlin’s rights to the lyrics. Under this theory, the licence subsequently granted by Willis Music to Warner Bros. would have required Newlin’s permission and was therefore defective.

The Southern District Court of New York dismissed the claim, holding that Newlin had originally assigned the copyright to Willis Music (rather than merely licensing it), that the licence to Warner Bros. was therefore valid, and that the plaintiffs’ attempted distinction between common law copyright and statutory copyright was, in the court’s words, a distinction without a difference. The court acknowledged that section 24 of the 1909 Copyright Act was “hardly a model of clarity” but proceeded with the analysis on the basis of the original assignment to Willis Music.

For Warner Bros. and the Big Bang Theory production, the dismissal closed the matter. For the broader question that the case raises — how producers can verify the validity of rights chains stretching back decades — the Soft Kitty case is one of many recent disputes that turn on the interpretation of historical copyright statutes and the practical limits of documentary verification.

Copyright duration in the US: a complex history

US copyright duration has gone through multiple statutory regimes:

• 1909 Copyright Act: established an initial 28-year term with a renewal term of an additional 28 years. Works needed to be registered and renewed. Without renewal, works entered the public domain after the initial term;
• 1976 Copyright Act: replaced the dual-term system for works created from 1978 onwards with a single term of life of the author plus 50 years. Works in their initial or renewal term under the 1909 Act were given extended duration;
• Sonny Bono Copyright Term Extension Act of 1998: extended copyright duration to life of the author plus 70 years for individual works, and 95 years for works made for hire and corporate works. Works from before 1978 were also extended;
• Current US duration: life of author plus 70 years for individual works; 95 years from publication or 120 years from creation (whichever is shorter) for works made for hire and corporate works.

For pre-1978 US works, the protection status depends on a complex interplay of original publication, renewal, and the cascading effects of subsequent term extensions. Many works from the 1920s and 1930s have entered the public domain in the US as their 95-year terms expired; many others remain protected through complicated renewal chains.

The Soft Kitty case involves a 1937 publication renewed in 1964 — placing it squarely within this complex transitional framework, with the renewal effective for an additional 28 years and subsequently extended through the term extension acts. The court’s analysis turned not on the duration calculation itself but on whether the initial 1937 transaction was an assignment (transferring ownership to Willis Music) or a licence (retaining ownership with Newlin) — a question that the documentary record from the 1930s did not unambiguously resolve.

Copyright duration in the EU: harmonised 70 years

The European Union has substantially harmonised copyright duration across member states through Directive 2006/116/EC on the term of protection of copyright and certain related rights (originally Directive 93/98/EEC, codified by 2006/116/EC and amended by Directive 2011/77/EU on sound recordings):

• Literary and artistic works: life of the author plus 70 years, calculated from 1 January of the year following the author’s death;
• Audiovisual works: calculated from the death of the last of the principal director, screenplay author, dialogue author, and composer of original music for the work;
• Anonymous and pseudonymous works: 70 years from when the work was lawfully made available to the public;
• Computer programs: same as literary works (life plus 70);
• Performers’ neighbouring rights: 50 years from performance, extended to 70 years for music phonograms by Directive 2011/77/EU;
• Phonogram producers’ rights: 50 years from fixation, extended to 70 years for music phonograms;
• Broadcasters’ rights: 50 years from first broadcast.

This harmonised duration applies across all EU member states, providing a degree of consistency for cross-border productions. However, national variations exist in specific categories (notably photographs in Italy until 2025, as discussed below), and the calculation of co-author durations can produce unexpected results.

The Italian framework: duration and renewals

Italian copyright duration follows the EU framework, with implementation through the Italian Copyright Act (Law no. 633/1941). Articles 25-32-quater of the Italian Copyright Act establish the general durations:

• Standard authorial works: life of the author plus 70 years (Article 25);
• Co-authored works: 70 years from the death of the last surviving co-author (Article 26);
• Audiovisual works: 70 years from the death of the last of the principal director, author of the subject, author of the screenplay, and author of music specifically composed for the work (Article 32);
• Photographs as artistic works: life plus 70 years (full copyright);
• “Simple photographs”: until 2025, 20 years from creation; under Law 182/2025, now 70 years (see below);
• Performances and phonograms: 70 years for music recordings, 50 years for other categories;
• Broadcasts: 50 years from first broadcast.

Italian copyright does not require renewal — protection arises automatically and continues for the full duration. The complex US renewal framework that underlies the Soft Kitty case has no Italian equivalent. However, Italian law has its own complexity: the distinction between artistic photographs (full copyright life + 70) and simple photographs (until 2025 a brief 20-year term) created decades of uncertainty about which category specific images fall into.

The 2025 Italian photograph reform (Law 182/2025)

Law no. 182 of 2 December 2025 represents the most significant reform of Italian photograph copyright in over half a century. The law amends Article 92 of the Italian Copyright Act, extending the protection of “simple photographs” from 20 to 70 years from creation, harmonising the duration of simple photographs with the broader EU copyright framework for sound recordings and performances.

The practical consequences:

• Photographs from 1956 onwards that were under 20-year simple photograph protection are now within the 70-year term. Many photographs that had entered the public domain in Italy under the previous 20-year regime — including a vast volume of historical, journalistic, and commercial photography — are now potentially protected again;
• The reform has retroactive effect for photographs whose 20-year term would have expired after the law’s entry into force, and may have implications even for works whose terms had expired before the reform, depending on the specific transitional provisions (a complex area of analysis);
• Productions using Italian historical photographs in projects distributed in Italy must reassess clearance status under the new framework. A photograph that was “in the public domain” under the prior regime may now require licensing;
• Cross-border distribution complications: a photograph may be in the public domain in one jurisdiction but protected in Italy under the extended term, creating asymmetric clearance requirements;
• Documentary and historical productions are most affected, as they typically use the largest volumes of archive photographs.

The reform aligns Italian simple photograph protection with the EU norms for related rights but creates significant transitional challenges for productions currently in circulation or in late-stage post-production. Italian rights clearance professionals are recalibrating their procedures to address the new framework.

Pre-existing works in TV and film productions

Productions routinely incorporate pre-existing works of various kinds, each with its own duration framework and clearance implications.

Music and lyrics

Music compositions and lyrics are typically protected for life of the author plus 70 years across the EU. For productions using older songs:

• composers and lyricists who died before 1956 are in the public domain for their compositions in Italy and most of the EU (the 70-year term having expired);
• compositions remain in protection through any surviving co-author’s lifetime plus 70 years — relevant where music was co-composed by multiple authors;
• sound recordings of pre-1956 music may still be protected as phonograms (70-year term for music phonograms, 50 for others), even if the underlying composition has entered the public domain;
• publishers and successors-in-title to original composers may hold administrative rights even where the underlying composer’s protection has expired.

For practical clearance: assume protection unless specific verification confirms public domain status, and verify status in each distribution territory.

Literary works and adaptations

Novels, short stories, theatrical plays, and other literary works are subject to the standard life-plus-70 term. For productions adapting older literary works:

• authors who died before 1956 are in the public domain in Italy and most of the EU;
• posthumous publications and works rediscovered after the author’s death may have specific durations;
• translations are themselves protected works with their own duration (calculated from the translator’s life), even where the underlying work has entered the public domain;
• derivative works (adaptations of older texts) have their own protection independent of the source.

The Italian framework follows the EU norms with no Italian-specific complications for literary works.

Photographs and visual archives

As discussed above, Italian photograph protection was substantially reformed by Law 182/2025. Until 2025, simple photographs had a 20-year term; artistic photographs had the standard 70-year term. The distinction created longstanding uncertainty for productions using archive photographs.

Under the post-2025 framework:

• all photographs benefit from 70-year protection (whether simple or artistic);
• distinction between simple and artistic photographs becomes largely academic for duration purposes;
• productions using Italian photographs from any decade need to verify status under the new framework;
• retroactive effects require legal analysis for specific photographs whose previous status was “public domain” under the 20-year term.

Pre-existing footage and clips

Pre-existing audiovisual works incorporated as clips (in documentaries, biopics, archive-driven productions) are protected for the standard audiovisual term (70 years from last co-author’s death). For pre-1956 audiovisual works, status varies by specific co-author death dates.

Additionally, even where the underlying audiovisual work is in the public domain, separate clearances may be needed for:

• music synchronised within the clip (separate from the audiovisual work);
• performances within the clip (separate neighbouring rights);
• any literary works or photographs visible within the clip;
• broadcast rights where the clip is sourced from a specific broadcast.

Public domain status across jurisdictions

A work in the public domain in one country may be protected in another. This asymmetry has direct practical implications for cross-border production and distribution:

• US public domain works pre-1925: generally in the public domain in the US, but may still be protected in the EU if the author died after 1956;
• EU public domain works (author death before 1956): in the public domain in the EU but may still be protected in the US under work-for-hire 95-year terms;
• UK and other Commonwealth jurisdictions: similar life-plus-70 framework but with national variations and specific transition rules;
• South American and other Berne signatories: durations vary, with most countries adopting life-plus-50 or life-plus-70.

For productions distributed worldwide, the “rule of the longer term” principle (Article 7(8) of the Berne Convention) generally allows protection in countries with longer terms to extend to works from countries with shorter terms — but practical implementation varies significantly.

Producers should not assume worldwide public domain status based on US or single-country verification. Each distribution territory requires its own analysis.

Orphan works and untraceable rights holders

“Orphan works” — works whose rights holders cannot be identified or located after diligent search — present a specific challenge for productions seeking historical materials. The EU framework provides limited relief through the Orphan Works Directive (2012/28/EU, transposed into Italian law by D.Lgs. 163/2014) for certain categories of works held by cultural institutions for non-commercial uses. The relief does not extend to general commercial production use.

For commercial productions facing orphan rights:

• Diligent search documentation: thorough records of search efforts (registries, publishing house archives, hereditary search, public databases);
• Risk acceptance with documented good faith: where search proves fruitless and the material is essential, some productions proceed on documented good-faith basis, accepting the risk of subsequent claims;
• Substitution: where the material is not essential, substitution with cleared alternatives is the safest path;
• Public domain analysis: thorough verification that the work is genuinely in the public domain in the relevant distribution territories.

The Italian Law 182/2025 photograph reform complicates orphan works analysis for historical photographs: works previously in the public domain may have returned to protection, with the rights holders unknown or untraceable.

Retroactive copyright protection and revivals

Copyright protection can be “revived” — restored to works that had previously entered the public domain — under specific legal circumstances. The Italian Law 182/2025 photograph reform is a recent and significant example.

Historical examples of revival:

• EU Term Extension: when Directive 93/98/EEC extended copyright duration from 50 to 70 years in 1995, many works that had entered the public domain in EU member states under the prior 50-year term were revived;
• US Uruguay Round Agreements Act of 1994: restored copyright protection for foreign works whose US protection had lapsed due to formality failures (e.g., absence of US copyright notice);
• UK Copyright Restoration Order 1995: restored protection to certain foreign works.

For productions using older works, the principle is: do not assume permanent public domain status. Status can change through legislative or regulatory action. Periodic re-verification of clearance for archive materials in continued distribution is prudent practice.

Cross-border distribution implications

The combined effect of duration variations across jurisdictions has direct implications for cross-border distribution:

• Worldwide rights confirmation: where the production intends worldwide distribution, clearance verification must consider the longest applicable term across all distribution territories;
• Territory-specific clearance: where the production is licensed to specific territories, clearance can be calibrated to those territories’ rules, with attention to onward distribution;
• Online distribution: streaming platforms typically expect worldwide rights clearance, even when distribution is initially limited to specific territories;
• Legacy library issues: for productions in continued distribution (catalogue titles), the periodic re-verification of clearance status — particularly in light of reforms like Italian Law 182/2025 — is increasingly important.

Modern rights clearance practice combines territory-by-territory analysis with worst-case scenario planning, recognising that distribution windows expand over time.

Frequently asked questions

How long does copyright protection last in Italy and the EU?

For most authorial works, life of the author plus 70 years (Italian Copyright Act Article 25, harmonised by EU Directive 2006/116/EC). For audiovisual works, 70 years from the death of the last of the principal director, screenplay author, dialogue author, and composer of original music. Sound recordings for music: 70 years. Other phonograms and broadcasts: 50 years.

How did the 2025 Italian photograph reform change copyright duration?

Law 182/2025 extended the protection of “simple photographs” from 20 to 70 years from creation. The reform has retroactive effect for photographs whose 20-year term would have expired after the law’s entry into force. Productions using Italian historical photographs must reassess clearance status under the new framework — many photographs previously in the public domain may now require licensing.

What was the Soft Kitty/Big Bang Theory case about?

In 2015, the daughters of Edith Newlin sued Warner Bros. and Willis Music in the US, alleging that the chain of rights to the 1930s poem/song used in Big Bang Theory was defective. The Southern District Court of New York dismissed the claim, holding that Newlin had assigned her rights to Willis Music in the original 1937 transaction, making the subsequent licence to Warner Bros. valid. The case illustrates the complexity of verifying long historical rights chains.

Can I use a song or photograph that I believe is in the public domain in my film?

Only after specific verification for each distribution territory. Public domain status varies by jurisdiction and by specific work. Use that is permissible in the US may infringe in Italy, and vice versa. For Italian distribution, the 2025 photograph reform requires reassessment of any previously-considered public-domain photographs.

What if I cannot trace the rights holder of an older work I want to use?

Orphan works options are limited. EU Orphan Works Directive (2012/28/EU, D.Lgs. 163/2014) provides relief only for specific categories of works held by cultural institutions for non-commercial use. For commercial productions: document diligent search efforts, consider risk acceptance with good-faith basis, or substitute with cleared alternatives. Specialist legal review is essential before proceeding.

How does retroactive copyright protection work?

Copyright protection can be “revived” by legislative action. Examples: the 1995 EU term extension (50 to 70 years) revived many works; the 2025 Italian photograph reform retroactively extends protection. For productions in continued distribution, periodic re-verification of clearance status is prudent.

Are there different durations for music compositions versus sound recordings?

Yes. Music compositions follow the general authorial term (life of composer plus 70 years). Sound recordings (phonograms) follow a separate neighbouring right term: 70 years for music phonograms in the EU (extended by Directive 2011/77/EU), 50 years for non-music phonograms. A song’s composition may be in the public domain while a specific recording remains protected, or vice versa.

How does the US copyright system differ from the EU in duration?

The US has a more complex framework with: 1909 Act terms (initial 28 plus renewal 28), 1976 Act terms (life plus 50 originally, extended to 70 in 1998), and corporate/work-for-hire terms (now 95 years from publication or 120 from creation). Pre-1978 US works have variable durations depending on registration, renewal, and term extension acts. The EU has a more uniform life-plus-70 framework. A work may be in US public domain but EU protected, or vice versa.

What should producers do about photographs in archival projects after Law 182/2025?

For productions in development or production: incorporate Italian photograph reform into the clearance strategy from the outset. For productions in distribution: audit existing clearances, identify photographs that may have changed status, and consider re-clearance for continuing distribution. For documentary projects relying on extensive Italian archive photography: budgeting and clearance timelines should anticipate the more demanding requirements under the new framework.

How DANDI supports rights clearance for TV and film

DANDI.media supports Italian and international film and television productions on copyright duration analysis, pre-existing works clearance, and historical rights chain verification:

• Duration analysis: verification of copyright status for specific works in Italian and EU territories, with attention to the 2025 photograph reform;
• Historical rights chain verification: research and documentation of historical assignments, renewals, and transfers for pre-existing works;
• Public domain confirmation: jurisdiction-specific analysis with documented findings for E&O insurance and chain-of-title use;
• Orphan works analysis: diligent search procedures, EU Directive 2012/28/EU compliance where applicable, risk assessment for commercial use;
• Reform compliance audit: assessment of how Law 182/2025 affects existing or planned productions, with re-clearance strategy where applicable;
• Cross-border rights structuring: clearance strategies for productions distributed across jurisdictions with divergent duration rules;
• Archive footage and photograph clearance: comprehensive licensing strategy for historical and journalistic materials;
• Music duration analysis: composition versus phonogram, co-author duration, publisher chain verification;
• Legacy library audit: re-verification of clearance for productions in continued distribution.

For an initial consultation on copyright duration or pre-existing works clearance — whether for a new production in development, a delivery-stage gap, or a legacy library audit — book a session with Avv. Claudia Roggero, founding partner of DANDI.media.

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