Songwriters’ heirs suing CBS over use of iconic theme song

Jun 4 2019      On Behalf of  David M. Duree & Associates, P.C.      Intellectual Property Litigation

When you think of The Andy Griffith Show, you can’t help but hear the iconic whistled theme song in your head. Watching an episode of that series without the theme song just wouldn’t feel right.

However, relatives of the song’s two writers, Earle Hagen and Herbert Spencer, contend that CBS Television Distribution doesn’t have the right to sell DVDs of the show that include the song. They’re suing the media group in federal court, claiming that it’s violating the song’s 1960 copyright.

The plaintiffs that now own the copyright, The Diana R. Spencer Trust and Hagen Publishing Group Inc, say that CBS is basing its rights to the song on a 1978 agreement between Mayberry Enterprises, which once owned the series, and Viacom, which split with CBS in 2005.

The plaintiffs say that the 1978 agreement made no mention of DVDs or digital media, which didn’t exist at the time. According to the suit, the songwriters’ heirs raised that issue with CBS, but the company declined to draw up a new agreement even though it proceeded to license the show to “digital services such as iTunes and Amazon for distribution and public performance.”

The plaintiffs are asking the court for an injunction to prevent CBS from distributing episodes of the show with the theme included. They’re also asking for the profits the defendants have made from the copyright infringement as well as damages and attorneys’ fees.

It’s interesting to note that Hagen, in talking about how the familiar theme song came about, said, “I realized what the show needed was a simple tune. So I spent all of 15 minutes writing it. I called my bass player and drummer, and we recorded it in a little studio in Hollywood. I whistled the tune myself.”

Since many contracts involving copyrighted materials and other types of intellectual property were created before the many forms of media around today were even imagined, the outcome of this case could have an impact on similar disputes. It also demonstrates how important it is to keep contracts regarding intellectual property current so that they reflect the technology of today.