- Item number 4 is a bit strange... I would have it changed so that the publishing rights return to yourself if the publisher does not get a distribution deal setup within a certain time period (1 or 2 years). They should do something...
- Item 6 is a definate no-go if I were to sign this contract. Publishing rights should be temporary, unless they are paying a large sum of money. If the publisher takes your game and then decides not to publish it, you will have done all work for nothing and you cannot even publish it yourself or look for another publisher. Also specify the platforms the publisher can publish on.
my first game-publishing contract
First of all: I've only seen one publishing contract before (10 years ago), so this might not be really applicable, but there are 2 things I find strange in this contract:
Greg, you wrote:
>Well, so far I haven't had much luck with getting a hold of a lawyer (still working on it, though.)
What does "luck" have to do with anything? This forum's moderator has a perfectly fine listing of game industry lawyers at http://www.obscure.co.uk/directory-legal/
Just start getting in touch with those in the U.S. - and right now. You can't afford NOT to.
>Well, so far I haven't had much luck with getting a hold of a lawyer (still working on it, though.)
What does "luck" have to do with anything? This forum's moderator has a perfectly fine listing of game industry lawyers at http://www.obscure.co.uk/directory-legal/
Just start getting in touch with those in the U.S. - and right now. You can't afford NOT to.
Author
Thanks for the advice!
Now that you bring this up, I think that clause does seem a little ominous. How exactly should the terms be changed. Off the top of my head I can't think of a legally correct way to set it up. I mean, it's not as if I can ask my publisher to let me change the contract so it says "the publisher owns the publishing rights, in any form (etc.) until the developer feels like breaking off the deal."
Should I propose that the publisher only owns exclusive publishing rights for a fixed time period?
I should probably clarify something here: I am actually very happy with this publisher. For one thing, it was the only company that would actually take on my game (and it came to me, instead of vice versa.) Also, this publisher has stated that it will provide certain services to me (such as creating and running a website for my game) which I am currently unable to handle.
Also, (if it is relevant), I do not plan on making a living off of this game. It is, after all, the first game I have ever even attempted to publish. I hope I didn't take away too much of my credibility by saying that :)
What's the reason for doing that? Maybe it's not applicable in this case; the game I made will only run on Windows.
By the way, thanks for the link, tsloper.
Quote:
# Item 6 is a definate no-go if I were to sign this contract. Publishing rights should be temporary, unless they are paying a large sum of money. If the publisher takes your game and then decides not to publish it, you will have done all work for nothing and you cannot even publish it yourself or look for another publisher. Also specify the platforms the publisher can publish on.
Now that you bring this up, I think that clause does seem a little ominous. How exactly should the terms be changed. Off the top of my head I can't think of a legally correct way to set it up. I mean, it's not as if I can ask my publisher to let me change the contract so it says "the publisher owns the publishing rights, in any form (etc.) until the developer feels like breaking off the deal."
Should I propose that the publisher only owns exclusive publishing rights for a fixed time period?
I should probably clarify something here: I am actually very happy with this publisher. For one thing, it was the only company that would actually take on my game (and it came to me, instead of vice versa.) Also, this publisher has stated that it will provide certain services to me (such as creating and running a website for my game) which I am currently unable to handle.
Also, (if it is relevant), I do not plan on making a living off of this game. It is, after all, the first game I have ever even attempted to publish. I hope I didn't take away too much of my credibility by saying that :)
Quote:
Also specify the platforms the publisher can publish on.
What's the reason for doing that? Maybe it's not applicable in this case; the game I made will only run on Windows.
By the way, thanks for the link, tsloper.
It's not that I suspect every publisher in the world of planning to stab their developers in the back, but it's nicer if the contract doesn't allow them to. If they don't plan to, then they should have no objection it.
Concerning the limitation of publishing rights: just try to get the statement to say that the game should be published within a certain period. If not, then the publishing rights revert to you. Once published, another (longer) time period starts after which the rights should revert to you again. This should be long enough so they can make a decent buck from it.
If the game is for Windows, then specify the rights apply to the Windows-version of your game. If Nintendo ever calls you up telling you they want your game, you aren't tied to your current publisher, but you could always use them again if the co-operation was to your liking.
Also, introduce an article mentioning they cannot sell the publishing rights to anyone else without your consent. And in case they go bankrupt, the publishing rights (again) revert to you.
These are all very extreme and most unlikely scenario's, but it's better to have them covered instead of fighting about them in case something bad does happen... Consider them a kind of insurance policy.
They might not agree to all points, but at least they should give you some explanation on why they don't want something in the contract. And it shows you've done your homework.
Concerning the limitation of publishing rights: just try to get the statement to say that the game should be published within a certain period. If not, then the publishing rights revert to you. Once published, another (longer) time period starts after which the rights should revert to you again. This should be long enough so they can make a decent buck from it.
If the game is for Windows, then specify the rights apply to the Windows-version of your game. If Nintendo ever calls you up telling you they want your game, you aren't tied to your current publisher, but you could always use them again if the co-operation was to your liking.
Also, introduce an article mentioning they cannot sell the publishing rights to anyone else without your consent. And in case they go bankrupt, the publishing rights (again) revert to you.
These are all very extreme and most unlikely scenario's, but it's better to have them covered instead of fighting about them in case something bad does happen... Consider them a kind of insurance policy.
They might not agree to all points, but at least they should give you some explanation on why they don't want something in the contract. And it shows you've done your homework.
Quote:Original post by El Greco
It's not that I suspect every publisher in the world of planning to stab their developers in the back, but it's nicer if the contract doesn't allow them to. If they don't plan to, then they should have no objection it.
Only an experienced lawyer can tell you those things, which is why we keep saying ...
The OP must get a lawyer to prevent getting completely run over.
Entering a major business contract without it is just plain stupid.
Quote:In the meantime, I thought I might post the contract's terms here.
You might have just broken an agreement with them if they required you to keep it confidentail.
Quote:I actually had to edit this document because it originally contained a few grammatical errors:
That is a bad sign. It shows they were sloppy, and publishers aren't usually sloppy on contracts that are important to them.
I am bothered by #4,6, and 14 in terms of reciprocity, perpetual global exclusivity, lack of oversight, and no dispute resolution. Also #8 in terms of practicality, #9 for clarification, #11 (unless you have your own QA group), and #12 having no cost limits, oversight, review, or dispute resolution of what defines "errors or defects". There are others, but those are my initial gut-wrenching items.
Visibly lacking are definitions of what you are to provide, when you are to provide it, what you get back out of the deal, and what they are gong to put in to the deal. There are no terms of design and deliverable expectations, nor for dispute resolution and oversight, which is further trouble brewing.
From what I've read, I don't see anything to prevent them from just taking your game and keeping it locked up forever. I don't see any requirement that they actually take steps to market your game, but I plainly see that if they choose not to market it or do a really bad job of it, you are out of luck. If you aren't happy with them and attempt to market it or move to another publisher, they can find you liable or extort a lot of money to cancel the contract.
If that was the entire contract deal, I don't know if I would be amused because of the ignorance it supposes, or appalled at the brazen control they are trying to get.
You *really* need to see a lawyer.
Author
Quote:You might have just broken an agreement with them if they required you to keep it confidential.
I was never required to keep this confidential, though I guess that's a good point.
Quote:That is a bad sign. It shows they were sloppy, and publishers aren't usually sloppy on contracts that are important to them.
Yeah, I was pretty disturbed by this as well. When I mentioned it to the person I'm working with, he told me I could just fix the errors myself. The overall impression I get is that the publisher sees the contract as more of a formality than anything. At any rate, I do not get the impression that the publisher is going to delve into this document to use it against me.
Probably the thing that bothers me the most about the contract is the "publishing rights for life" thing in clause 6.
Also, following frob's line of reasoning, I think I will ask that the contract will be changed such that publishing rights revert to me if the publisher never really does anything with the game.
I still don't quite understand what the difference is between a game's copyright and exclusive publishing rights.
Quote:Original post by synth_cat
I still don't quite understand what the difference is between a game's copyright and exclusive publishing rights.
A lawyer could explain it in more detail, and could answer each and every other question you can think of, in real time.
But basically the difference is that when you own the copyright you can say "I made that." But if you have the exclusive publishing rights, you can make money from it.
Author
I would have to talk to a lawyer from California, obviously. However, I am currently out of state (without a car or the free time for trips) and I would have no way of meeting this person face to face.
I don't really know how lawyers work. Would it be possible for me to conduct business with one solely by email and phone?
I normally would not have considered doing this at all. I'd always assumed that a developer would only bother consulting a lawyer if he knew his game were worth at least a four-figure gross. But, since you guys seem so insistent, I guess I'll try and give it a shot.
But it has to be a California practitioner that I talk to, and that complicates matters.
I don't really know how lawyers work. Would it be possible for me to conduct business with one solely by email and phone?
I normally would not have considered doing this at all. I'd always assumed that a developer would only bother consulting a lawyer if he knew his game were worth at least a four-figure gross. But, since you guys seem so insistent, I guess I'll try and give it a shot.
But it has to be a California practitioner that I talk to, and that complicates matters.
Just call around and get some prices. Look in your city/town. It's free to call them and ask how much they cost to review a contract.
Quote:Original post by synth_catNo, you would not.
I would have to talk to a lawyer from California, obviously.
Quote:I don't really know how lawyers work. Would it be possible for me to conduct business with one solely by email and phone?Lawyers work just like any other business professional. They work in an office, the have clients call them, schedule appointments, and visit them in person. They bill for the time.
The first time you establish a business relationship is generally done in person. After you have a relationship they may also give advice over the phone, but it is less efficient and they will still bill you for your time (just like any other business professional).
Quote:I normally would not have considered doing this at all. I'd always assumed that a developer would only bother consulting a lawyer if he knew his game were worth at least a four-figure gross.If you are going to engage in business, you should consult a lawyer. The cost is cheap. Make some phone calls, find somebody close by who understands IT business law and IP rights, even better if they understand the games business. You should be able to find somebody for under $150/hr fairly easily.
Quote:But, since you guys seem so insistent, I guess I'll try and give it a shot.Entering into a business contract is a big thing. Make sure you go in with your eyes wide open.
Quote:But it has to be a California practitioner that I talk to, and that complicates matters.Just because they want the contract to be enforced under their local law doesn't mean a local lawyer can't help you. Much of contract law is general across the country, with relatively little local nuance. A lawyer will understand this fact, and know how to navigate it.
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