A claim for an increase of the author’s remuneration as exemplified by Andrzej Sapkowski’s “Witcher” and CD Projekt S.A - an interview with Janusz Piotr Kolczyński by Dziennik Gazeta Prawna

3 October 2018

The media has recently spread the news that Andrzej Sapkowski, author of the "Witcher" novel, has demanded that CD Projekt S.A. increase his remuneration for the transfer of the copyright to "Witcher". The author has requested, via his lawyers [request for payment], to be paid additional PLN 60m, which would reflect the market success of the computer game of the same title published by CD Projekt.

The basis of the claims sought by the writer is Article 44 of the Act of 4 February 1994 on Copyright and Neighbouring acts ("Copyright Act"), also known as a bestseller clause, which stipulates that:

“In the event of a glaring disproportion between the creator’s remuneration and the benefits achieved by the purchaser of the copyright or the licensee, the creator may seek an increase in his/her remuneration in court”.

Will this clause actually apply in this case and will the fact that the author has already been paid remuneration for the transfer of his rights and renounced a game sales revenue sharing scheme be interpreted as a fact excluding the legitimacy of his claim?

Attorney-at-law Janusz Piotr Kolczyński tried to clarify these doubts in his interview for Dziennik Gazeta Prawna to be found here and here. The lawyer unequivocally stated that “the claims follow directly from the Copyright Act” and they are inalienable. Even if the author has renounced such a claim in the agreement, he/she could still seek it in court.” Kolczyński stressed that while a claim under Article 44 of the Copyright Act is lodged not only against the other party to the agreement but also against the subsequent buyers of the copyright, it was the amount of the remuneration paid to A. Sapkowski as compared with the benefits drawn from his rights by the publisher that would be of key importance in that case.

If it does turn out that the copyright to Sapkowski’s works was purchased for several tens of thousand Polish zloty and the computer games became a tremendous international success bringing hundreds of millions of zlotys in profits, the expert believes that this would be exactly the situation specified in Article 44 of the Copyright Act.

What is more, Kolczyński further stated that “if an amicable settlement were reached now or the court ordered the remuneration to be increased, this would not prevent the creator to lodge further claims on the basis of the same rule in future.”

You are most welcome to read the whole interview here and here and an interesting discussion by the interviewer on Twitter.

Source: Dziennik Gazeta Prawna