Knowledge & News

A co-hop-yright clash

12 June 2020

The English novel Watership Down has long been subject to criticism from those that consider themes of ecological destruction too dark for children. Yet English writer G.K. Chesterton explained over a hundred years ago that children’s stories are not about teaching children that bad things exist. They are about showing them that bad things can be overcome. Having heard their father’s tale as young girls, it seems that Adams’ daughters have now faced and defeated their own Elil[1], winning the copyright in the book back in a lengthy dispute against the director of its famous film adaptation.

Published in 1972, Watership Down tells the epic and dangerous journey of a group of rabbit refugees whose warren in the English countryside is destroyed to make way for a new housing development. Germinated during long car journeys with his two young daughters, Adams’ story was rejected by several literary agents and publishers before a small firm agreed to print 2500 copies. “I’ve just taken on a novel about rabbits, one of them with extra-sensory perception,” Publisher Rex Collins told a friend at the time. “Do you think I’m mad?”

A moment of mad genius, perhaps. Watership Down went on to be included in the Penguin Puffin Books children’s series, won the Carnegie Medal in Literature in 1972 and the Guardian Children’s Fiction Prize in 1972, and spawned countless TV and film adaptations including a critically acclaimed animated adaptation starring John Hurt. The success allowed the author to quit his civil service job in 1974 to become a full-time writer. He published a further 19 books, including Plague Dogs, about two dogs who escape from a British research laboratory.

It has now been reported that the High Court’s specialist Intellectual Property Enterprise Court (IPEC) has ruled in Watership Down Enterprises Limited v Nepenthe Productions Inc and others that Martin Rosen, producer and director of the 1978 animated film, and his companies had wrongly claimed he owned all rights to Watership Down and had committed copyright infringement.

Adams publicly said the film’s departure from the original story had been a disappointment to him but the copyright infringement claim was seemingly brought after the author’s death in 2016 by the family estate, Watership Down Enterprises. Adams sold the film adaptation rights to Rosen for £50,000 in a 1976 contract but the Court heard that Rosen later incorrectly claimed ownership of all rights to the novel. He reportedly entered into contracts worth half a million US dollars and failed to pay the estate royalty payments for a Netflix and BBC adaptation and associated merchandising.

“It was a shame because my father regarded him as such a friend,” Adam’s eldest daughter Juliet Johnson, MD of Watership Down Enterprises, told The Times. “My daughter said my father would be proud of us for getting back the rights but I think he would have been humiliated. Sometimes bills would come in and either parent would have to sell something, either ceramics or rare books, to pay them. It should be joyful that we have won these rights back but in reality it is a tragedy.”

All remedies available in the High Court can be claimed in IPEC cases, including preliminary and final injunctions, orders for the payment of damages or an account of profits, and orders requiring that the judgment be published on a website or otherwise disseminated. In this case, His Honour Judge Hacon ordered Rosen and his companies to pay an initial $100,000 in damages for copyright infringement, the unauthorised licence arrangements and withheld royalty payments. The defendants must also pay the Trust’s legal fees, with further damages to be assessed at a later hearing. Furthermore, they must provide details of all license agreements involving the book and have been injuncted from continuing to licence rights they do not own. The 1976 contract granting adaptation rights to Rosen has been terminated.

“As custodians of this most beloved novel, our family has an obligation to protect the publishing and other rights for Watership Down and to preserve the essence of our father’s creation,” Juliet Johnson said in a statement on behalf of the Watership Down Trust. “After many years trying to resolve matters directly with Rosen, we are extremely pleased with the high court’s ruling. We can now look forward to the future and develop new projects that honour the powerful and pertinent messages of Watership Down about the environment, leadership and friendship.”

The judgment has not yet been published but it would be interesting to see what arguments and evidence swung the decision in the Trust’s favour. It is unlikely that the Trust had any problem showing that the novel was a literary work benefitting from copyright protection, so did the case turn on proving the alleged primary or secondary acts of infringement and the validity of the 1976 contract assigning rights to Mr Rosen? It also remains to be seen whether Rosen and his companies will seek leave to appeal. At the time of writing, almost two weeks later, his production company’s website still states that ‘Motion Picture and All Ancillary Rights’ are available.

[1] The rabbit word for enemy in the book, including dogs, cats, foxes, weasels.

Authors

Rebecca Campbell

Rebecca Campbell Associate London (UK) Glasgow (UK) Chartered (UK) and European Trade Mark Attorney

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