Witcher Author Threatens CD Projekt Red With Legal Action If It Doesn't Pay Him More

Screenshot: Kotaku, The Witcher 3

The creator of The Witcher books, Polish author Andrzej Sapkowski, has called on CD Projekt Red to pay him up to 60 million zł ($22.4 million) more in royalties following the success of the studio’s video game adaptation of the series. In a post on the company’s website, CD Projekt Red called the demands “groundless”.

Lawyers for Sapkowksi claim in a letter CD Projekt Red reposted on its website that Polish copyright law entitles him to more royalties based on the now large discrepancy between what the studio originally paid him and how much it has gone on to profit from the copyright.

Citing Article 44 of Poland’s 1994 copyright law, they write, “[Article 44] may be invoked when the compensation remitted to the author is too low given the benefits obtained in association with the use of that author’s work.”

The lawyers also argue that the original agreement only applies to the first Witcher game and not any others, something CD Projekt Red denies. “All liabilities payable by the Company in association therewith have been properly discharged,” the company writes.

Not much is known about the original agreement by which CD Projekt Red secured the rights to make its Witcher trilogy, which wrapped up in 2016 with the release of the Blood and Wine expansion, or its current digital card game Gwent based on the same characters.

Based on reporting by Eurogamer, the studio apparently approached Sapkowski in the early 2000s about making games based on his books. “It wasn’t a huge amount of money,” CD Projekt Red co-founder Marcin Iwiński told the site in 2015.

In Sapkowski’s view, the studio’s offer wasn’t so meagre. “Well they brought a big bag of money,” he told Eurogamer in 2017. Sapkowski didn’t expect the games to amount to much, so he settled for the flat amount rather than royalties based on its financial success. In hindsight he regretted his decision.

Screenshot: Kotaku, The Witcher 3

“I was stupid enough to sell them rights to the whole bunch,” he told Eurogamer.

“They offered me a percentage of their profits. I said, ‘No, there will be no profit at all - give me all my money right now! The whole amount.’ It was stupid. I was stupid enough to leave everything in their hands because I didn’t believe in their success. But who could foresee their success? I couldn’t.”

In the years since, The Witcher has come to be one of the role-playing genre’s defining series, with with CD Projekt Red reporting in 2016 that The Witcher 3 had shipped 10 million copies. By the following year, the studio announced that the trilogy as a whole had sold 33 million copies worldwide.

Now, Sapkowski is trying to pressure to the company into paying him more to account for that success.

While his lawyers’ letter mentions various legal arguments in Sapkowski’s favour and claims the original contracts “do not conform to even rudimentary due diligence principles”, the ultimate goal appears to be some sort of new settlement, calling for the studio to resolve things with him amicably lest either party’s reputation be damaged.

For its part, CD Projekt stated it’s also interested in keeping its relationship with the author of the source material on good terms.

“It is the Company’s will to maintain good relations with authors of works which have inspired CD PROJEKT RED’s own creations,” it said in the post on its website. “Consequently, the Board will go to great lengths to ensure amicable resolution of this dispute; however, any such resolution must be respectful of previously expressed intents of both parties, as well as existing contracts.”

It’s unclear how much of either side’s words amount to posturing, and CD Projekt Red did not immediately respond to a request for comment about the terms of its original agreement with Sapkowski and whether it would be open to some new financial settlement. The letter from Sapkowski’s lawyers give a deadline of October 19 for negotiations to begin.


Comments

    If that quoted law is correct he may have a case. Hindsight is always 20/20.

      Seems he gets a second bite at the cherry. I don't think it will let him switch over to percentage royalties though. He might still be stuck with a lump sum, but one that is adjusted to take into account the profitability of CDPR's Witcher games.

      There are similar ideas in other countries' legal systems to protect creators against bad deals they made earlier in life.

      For example, the US allows copyright holders the option to terminate licenses or transfers after 25 years if they're not happy with the existing arrangement. This is the law James Cameron is relying on to regain rights to Terminator.

      The Polish law seems particularly wide ranging though, with no time limit to protect the party accepting the license or transfer. Presumably the courts will take that into account so as not to destroy contract law.

        Not identical (Australia excludes mass produced works), but there's also similar ideas in Australia where the original artist is entitled to a percentage royalty on future resale of their works irrespective of the original sale price. The intention being that artists selling their work for a pittance shouldn't later have to watch as other people make squillions on selling that work.

    Idiot agreed to the deal he got originally got over a percentage cut because he had no faith in the video game market or CD Project Red. He made his own bed.

      He'd gone percentage of sale on loads of Witcher properties before CDPR bought it and they all failed dismally. It was prudent to take a lump sum since all the other ventures using the IP had failed and the CDPR Witcher game (technically the second game based on the IP) was yet another very long shot at any success.

        Prudent, yes. But that's the point, isn't it? Bigger gambles pay bigger. He wants the prudent choice AND the big payout at the end. We should all be so blessed.

      faith in the video game market or CD Project Red

      To be fair, it wouldn't be the best financial decision to trust an unknown game developer making their first game. All they'd had was an obscure game delivery service and helped to translate a couple of games in to Polish.

      Sure. But the bed, as it were, was in Poland, with knowledge of Polish law, including the law that would allow him to renegotiate after the fact and ask for more money in the event that the price he was paid didn't reflect the final value of the thing he sold.

      And CDPR agreed to the contract under Polish law, so I'm sure they were well aware of the possibility as well. You can argue that it all seems shitty, but it's not like any of this will be news to the litigants.

    “They offered me a percentage of their profits. I said, ‘No, there will be no profit at all - give me all my money right now! The whole amount.’ It was stupid. I was stupid enough to leave everything in their hands because I didn’t believe in their success. But who could foresee their success? I couldn’t.”
    This.

      Yeah, the interview is pretty damning, and it kinda wrecks there case a bit.

      True, but when CD Projekt Red also has been quoted as bragging about how they got the license for only $9500 for their multi-million dollar game, its going to be an interesting case.

    If the author wants to make money, he should probably write more books. Or start a completely new IP.

      You think its the authors that make the money from book sales?

        One would be forgiven to assume an author makes money from writing successful books.

      He did just sell the rights to Netflix. I'm sure that wasn't a small amount.

    It is really hard to feel sorry for him assuming CD Projekt Red did their due diligence on the contracts. He took the money upfront and got paid, not only did he get paid but i would say he now has quite a few more people reading his work then ever before.

      Exactly, and I recon Netflix has paid a decent amount for his licence, even though it would be worth shit if not for CD project red. He's better of for the game, and he by his own admission requested a shittier contract. It seems a bit rich to now ask for more.

    I hope he doesn't get a dime. While I am thankful he created the series which became the beloved games, he has been a negative force for the computer rpg for years and he was greedy and stupid the first time around.

    Also, in some ways he has gained additional royalties from the games in the form of exposure of his books. They were barely known outside of Europe and he would have benefited directly from the game's popularity which would have seen a large spike in book sales. And let's be honest, they were not great anyway, the game world being the far superior version of his creation.

      Saying the books aren't great isn't entirely fair though, because unless one speaks Polish (and if you do I withdraw my objection, that's super neat), then it's dependent on the translator. And so far there has been two.

      The Last Wish was translated by Danusia Stok and I love it. It's literally my favourite book, period. Sword of Destiny is translated by David French and I found it ranged between being average at best and absolutely terrible at worst. And so because he's done all of the rest except the next in the series, I've bailed on them. But in Polish they could be fantastic.

    Seems to me like the IP was worth about what he got paid for it, at the time he got paid for it, and its increased value would seem to be OVERWHELMINGLY the result of literally a decade's worth of work and resources invested by a team of hundreds of people.

    Meanwhile, the author has been notable in his disdain for that work, and has kept as far away from it as possible, contributing nothing more than criticism to that value since the 00s.

    Is the current value of the IP something that was supposed to have been accounted for? Sounds like this guy is arguing that his original negotiation should have been: "By the time you guys spend ten years and hundreds of thousands of man-hours on it, and millions in development and marketing costs, it'll be worth heaps, so I should get paid on the basis of that investment you make, not on what the IP's worth now!"

    Just strikes me as kind of a fucking bullshit argument.

      Part of his argument is that he sold the rights to CD Projekt Red to make one game and they went on to make three.

        I just can't imagine that a company like CDPR especially - experts in IP rights for years prior to that deal, thanks to their GOG-resurrection efforts - would go on to invest all that capital, all that marketing, go into partnership with Microsoft for TW2, and then go on to repeat the mistake in TW3 if they hadn't secured the IP rights. That just seems... so overwhelmingly implausible that no-one would've caught that.

        Ockham's razor: he's reaching, retroactively re-writing his impressions of the original negotiations, searching desperately for any semi-plausible crack he can try to crowbar open an opportunity to correct his mistake, and that's the one point where he might try and argue that something wasn't explicit enough that it could POSSIBLY be interpreted as a one-game deal, and he's only contesting it now that he thinks he can leverage some coin out of it, instead of when he caught wind of a second, let alone third, game being developed.

      I believe this is the conclusion that any reasonable person will arrive to. The Witcher would not have the insane worth it has today if it weren't from CD Projekt's work on it. This case is just insane. If I chop a tree and sell the timber to someone for a fair price I cannot later expect royalties if that person used the wood to make a freaking Stradivarius and sell it for millions.

        You can turn it around the other way too though: would CD Projekt Red's games have been as successful if they hadn't built on top of the world and characters created by Sapkowski?

          On the other hand, it's basically a given that the Netflix Witcher TV series deal, which earned Sapkowski a solid sum of money recently, would never have happened if not for the game series. The books alone would never have resulted in that deal, so I don't think it's unreasonable to say Sapkowski benefited considerably from the work of CDPR, perhaps even more (relatively speaking) than CDPR benefited from the work of Sapkowski.

          How well Cyberpunk 2077 does when it releases will give additional view into how much of CDPR's success is from the source material vs how much is from their own work on top of it.

            Sure, but you can also say that none of the Game of Thrones games would have been made without the HBO show popularising the work: that doesn't change the fact that the HBO show wouldn't be what it is without GRRM's writing.

              I can't imagine Martin suing the Game of Thrones TV show because he thought he wasn't getting enough money from them. He seems perfectly content with touring (something he was doing a lot before the show too, off the profits from the books) and pretending to write the next book.

                (a) Martin likely made a much better deal, and (b) US law doesn't give him the right to renegotiate the contract so soon.

                My point was more that while film, television, and games might have a wider audience, they still rely on story. If CDPR didn't need anything from the books, why didn't they just start their own IP?

              And I'm not disputing that the Witcher games needed Sapkowski's work to be what it was. As I said, CDPR benefited from his work, it's just he benefited from theirs at least as much, if not more.

              If CDPR didn't need anything from the books, why didn't they just start their own IP?

              I'm not sure why you're asking that, to be honest. I feel I already addressed it in my earlier comment: they both benefited. My point - that Sapkowski benefited more - isn't diminished by whether or not CDPR benefited at all.

                This is basically an argument that exposure is as good as payment though, which is a shitty argument.

                CDPR clearly derived value from the intellectual property, so the argument is whether the fee they paid is a fair one for that value. Artists have been undervaluing their work for centuries, and laws like this Polish one (or the Australian one for resale royalties, or the US one for license termination) are examples of society wanting to support artists when they make bad deals.

                  No, it's not an 'exposure' argument at all. Exposure is an intangible and unenforceable guess as to the future, this case has concrete examples of the tangible benefits each side gained from the agreement.

                  I'll state this again in the hopes it doesn't need to be continuously raised and responded to: nobody is debating whether CDPR derived value from the agreement. Of course they did, so did Sapkowski. That's why agreements like this exist and why people enter into them, to gain mutual benefit.

                  I don't concur with your view that article 44 is an example of society wanting to support rights holders when they make bad decisions, that's far too broad an interpretation. It's my view that the article is intended to protect rights holders from being pressured into bad decisions by virtue of a power imbalance between themselves and those negotiating on the other side. That clearly wasn't what happened here; in fact, Sapkowski was the one in a position of power when these negotiations were taking place: his property was worth considerably more than the largely unheard of CDPR in the early 2000s.

                  Rather, Sapkowski deliberately chose a flat fee and explicitly and repeatedly rejected percentage offers from CDPR. The notion that the law was intended to allow Sapkowski to deliberately choose terms he wanted under neither pressure nor duress and at the express opposition of the other party, then years later renege on the terms he defined because the rejected terms turned out to be more favourable is weak and one I can't support until we see how the Polish courts rule, if they ever get the opportunity to.

                  If that were the true intent of the law, it would grossly undermine the purpose and integrity of contracts and be extremely exploitable - all a rights holder would need to do it negotiate unfavourable terms to bait the other side into agreement, wait a few years and then forcibly change the terms of the contract retroactively to collect extra money. You can't seriously think that would be an intended outcome.

      100% agreed. The games and CDPR's work is why the IP is popular. He didn't think they could do it, and he doesn't like their work anyway - he even said he considers it completely separate from his own work.

      He sold his rights to allow someone else to play with his setting & characters. They made it way more popular than he ever did through their efforts. He doesn't deserve shit.

    They’ve already made him plenty of money. The games are the only reason The Witcher is known out of Poland.

    He wanted the money up front, he doesn’t get to change his mind after the fact.

      Yes he can change his mind, thats what most contract law court cases are about... contracts are not iron-clad, they are a piece of paper listing terms and conditions which "should be" in compliance with the law. A dispute is either someone trying to change the deal after the fact, or one party not holding up their end, or stating that the contract was illegal in some fashion.

      If he is just challenging over money, its a tough case for him to win... but that Article 44 does give him a foot to plant in re-negotiation settlement.

    CD Projekt Red is also in an interesting position here cause they have Government Grants for business and arts, to support their new game development and their game store platform, this attention and public dispute may not sit well with the Polish government if the author is "famous" inside their homeland.

    The guy might be a brilliant author, but wow, what a rude, greedy, negative and short sighted individual. His own words damn him. And now that CDPR has spent all this time and money making it a bigger success than he ever could (while bashing them all the way) he wants a bigger cut? YEAH NAH.

    It'll be interesting to see how this plays out. But as usual, here at Kotaku, we seem to have the worlds finest lawyers up and at em on the chatboards already! ;)

      What kind of comment section would that be? :P Imagine 30 comments all saying variations of "Interesting, let's see how it plays out".

    He went into the deal with his eyes wide open. I would probably have some sympathy for him if he hadn't been so explicitly sure that CDPR weren't going to make any money.

    It seems weird to me that he would get a free second bite at the cherry too, but that's how s44 reads (i'm not an expert on Polish copyright law though...).

      I skimmed the rest of that section of the Polish copyright act, there don't seem to be any conditions or clarifications. As written, article 44 is just terribly designed. If CDPR had had to factor it in when negotiating in the first place, the games would never have been made because Sapkowski consistently refused a percentage deal.

      Law aside, ethically Sapkowski's moves here are unethical. He's exploiting a law that was written with the intention of protecting creators from being bullied or bluffed into accepting bad contract terms by nominally powerful negotiators on the other side. The fact Sapkowski refused percentage-based deals multiple times should place the responsibility for those contract terms squarely on his shoulders. Instead, he seems to be chasing the letter of the law instead of its spirit, and if public response so far has been anything to go by, he's grossly sabotaging his own public reputation in the process.

        I'm actually wondering what spurred on his sudden interest? Surely it can't be the fact he's about to make money from the Netflix deal and got a little greedy...

          I imagine it went something like this.

          Netflix: Hey we want to make a TV deal for the Witcher.
          Sapkowski: Great. Hey lawyers, come help me with this because I screwed myself out of a lot of money last time I negotiated rights.
          Lawyers: Oh, what happened?
          Sapkowski: I was stupid and demanded a flat fee instead of a percentage.
          Lawyers: Oh Sapkowski, don't you know! In Polish law you're not stupid, you're a victim! Look at this article 44 here, you can demand more money from the video games.
          Sapkowski: Hey! You're right! I'm not stupid, I'm just a victim! Those damn computer people fucked me but now I can get more money anyway! Do it, lawyerfriends!

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