IN A NUTSHELL:
- Croatian musician Elvis Stanic believes that CD Projekt RED has illegally used his piece Naranca in The Witcher 3: The Wild Hunt;
- The song was covered by Percival and featured on the band's album in 2012, then selected for the soundtrack of the Wild Hunt by the composer Marcin Przybylowicz;
- The musicians could have unwittingly violated copyright law;
- The Croatian musician claims he has repeatedly attempted to contact the Polish developer in this matter, but has never received an answer;
- CD Projekt RED and Percival did not comment.
Last Thursday, we received a very interesting email. It was sent by Elvis Stanic, a distinguished jazz musician from Croatia, a holder of the Presidental Order of Croatian Danica, the highest state award in the Balkan country. The 55-year-old artist informed us that for over a year, he has been unsuccessfully trying to obtain redress from CD Projekt Red for – in his opinion – illegal use of the song Narancain The Witcher 3: Wild Hunt. The song featured in the game was produced in Poland by the band Percival Schuttenbach, and fans know it under a completely different name, the Widow Maker.
The realization that his composition was featured in the game didn't occur to the musician until two years after the release of The Wild Hunt. The musician contacted the developer, which led to the immediate removal of the song from all digital distribution channels, in which the soundtrack available – i.e. streaming services (such as Spotify), as well as stores (e.g. iTunes). CD Projekt Red did not inform the public about this fact, but only quietly backed off. A few days later, the Widow Maker was also removed from the OST that came with the full version of The Witcher 3 on Steam and GOG.
Fans of the game suspected that the sudden disappearance of the song could be caused by a copyright infringement, but since the parties concerned did not go public with the information, the whole affair was quickly forgotten. The email sent to our office more than a year after those events proves, however, that Stanic did not give up and, after unsuccessful attempts to make contact with CD Projekt Red, finally decided to issue a statement. We know that the message was sent to at least a few Polish industry services as well.
In his statement Stanic expresses his satisfaction that the piece composed by him found its way to such a renown video game, but at the same time, he openly stated that it was used illicitly. Additionally, the title of the piece was changed, and its authors missing from the credits, where only the names of Mikolaj Stroinski and Marcin Przybylowicz appear. The Croatian emphasized that despite repeated attempts of his lawyers to get in touch with the management of CD Projekt RED, the Warsaw studio never responded. In his opinion, the developers ignored all of his claims, which, however, evidently reached the studio, considering the fact that the Widow Maker was promptly removed from the soundtrack. For now, Stanic focused on flagging all compositions infringing his copyrights on YouTube, saving only those covers, in which he, or Putokazi (the band for which the song was composed in 2000), are mentioned as the author(s). The version performed by Percival, who recorded the same song seven years ago, has disappeared from YouTube as well.
It is Percival that plays the key role in all this confusion. In 2012, under the leadership of Mikolaj Rybacki, the band released a CD entitled Songs of Southern Slavs, which included various folk songs from the Balkans - Naranca included. The musicians do not offer a statement on this matter, but it is not difficult to imagine that they had not suspected that anyone could claim any rights to a folk song. Meanwhile, Stanic, having created a composition for Putokazi, guaranteed himself an entry in the international database of ISWC that's documenting songs and their authors. In other words: from a legal point of view, the Croatian is actually able to execute his rights. If the situation really is as suggested in the email, the other side of the dispute will have to prove that the musician is not the author of the composition, and that Naranca in such version was known in the Balkans for several dozen or even hundred years.
When creating the soundtrack to The Witcher 3, CD Projekt Red used the entire discography of Percival, so it's hardly surprising that among the compositions chosen by Marcin Przybylowicz there also was Naranca. Considering this fact, the Croatian's claim that the developers deliberately stole and misappropriated his work is a little far-fetched. The musician should first of all clarify the matter with the artists from Percival, but Stanic doesn't mention the Polish band in the statement at all, making accusations only against the creators of the game. Why? Here, we can only surmise. The musician may simply lack the knowledge about how The Witcher 3's soundtrack was exactly created. It cannot be ruled out that he concluded the chances of obtaining an unspecified compensation from Percival are slim. Technically speaking, the Polish band only performed a cover, which is confirmed by the presence of other, similar compositions on the album Songs of Southern Slavs. We also venture to assume that CD Projekt Red is also a more convenient target, because the company - as we all know - has been doing great in financial terms lately.
We are very curious about how this matter will play out. We asked both Percival and CD Projekt to comment on it, but in both cases, the request was rejected. Below, you will find an opinion on the case by Michal Wysocki, our fellow attorney working for the Law Firm of Advocates and Legal Advisers Wyrwa and Associates.
Without the knowledge of documents and the opinion of the company and the band, it is difficult to clearly say who is right in this situation. On the one hand, works of folk art, including songs and melodies, are not subject to copyright protection because they are works that have never received their final shape, their authors are unknown, and the compositions have been handed down from generation to generation in various versions. On the other hand, however, Article 85 of the Copyright Law protects the artistic performances of these works, commonly referred to as "arrangements." However, in order to benefit from such protection, the performer must prove that his arrangement has a unique, original contribution, which distinguishes it not only from the folk version, but also from other, previously created performances.
Even if Elvis Stanic is able to prove that the Widow Maker violates his rights to the song Naranca (which is by no means self-evident), there is still a question of liability for this violation. It will undoubtedly be borne by the author of the plagiarism, both on civil and criminal grounds (Article 115 of the Copyright Law). Indirect liability of CD Projekt will depend primarily on the provisions of the agreements between the company and Percival. It is generally accepted (although there are views to the contrary) that indirect liability for copyright infringement is limited, in accordance with the provisions of the Civil Code, to entities that have induced, aided or knowingly used the infringement. In order for Elvis Stanic to claim any compensation from the Polish company, he would have to prove that the authors of The Witcher committed any of these misdeeds.
- CD Projekt RED - official website