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Spanky

Development Contract

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Hey, I'm currently in negotiations over a contract for future employment (of myself) with a game company. I had a few questions about what is "typical" and normal. Is it typical for a game development company to have a clause that states that any work that the employee works on (related to coding obviously), even in their spare time, is owned by the company? I'm also working on my own project (an RTS and a world editor) and have been for two years. There is dispute over whether or not I will be able to even continue with this. I had plans on releasing it as open source within the next year or so but that's currently under review. They said that I may directly or indirectly be influenced by things I see at work. I have worked for them before for a period of a year and I haven't seen any influence on my own code. I've been coding for about 20 years now give or take a few. The editor is far along that the framework is stable and pretty much finalised. Also, anything I do in the editor will either be my own creation (IE - it won't be visible in the public domain and it won't be inside the editor at work), or it will be visible in the public domain somewhere regardless of whether it is in the editor at work or not. Is it normal for a company to basically say that I can't do *anything* graphics related outside the company and even if I do, they still own the rights to it (anything that is done while I work for them. Not before or after employment)? If it is not, could you please provide a reference to an example company that does this? I'd like to at least have a case for myself with examples if I need to negotiate this aspect further. Thanks

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Is it typical for a game development company to have a clause that states that any work that the employee works on (related to coding obviously), even in their spare time, is owned by the company?

Yes, it isn't uncommon for this to be in a contract.

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So in terms of game developers, do they all just give up coding as a hobby? I know there are probably exceptions to the rule everywhere but on a whole, if a game developer wants a job, they have to give up coding games or graphics related things when they take on a job?

Also, if this is the case, how does anyone improve their portfolio? How would I create anything to show to a possible future employer if my current employer owns everything I do, even if it was done in my bedroom? Couldn't they just say that I'm not allowed releasing any of it, even if they don't even know what *it* is really?

This just seems rather restrictive to me to say to someone that if you work for us, you have to give up coding outside of work hours entirely.

Shawn

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Shawn wrote:
>So in terms of game developers,

Just to be clear - you're using the term to mean "programmers," not "development companies as opposed to publishing companies." And the topic of this thread, BTW, is employment contracts (not development contracts).

>do they all just give up coding as a hobby?

No. Not all. Some, due to their standing and experience, are able to negotiate changes to the contract in regards to this clause. And some proceed with the hobby thing just for fun (and don't release the results without first clearing it with the employer). There are many possible ways to respond to this clause.

>on [the] whole, if a game [programmer] wants a job, they have to give up coding games ... when they take on a job?

If that's what their employment contracts say. Why do you want to program for 8+ hours every day and then go home and program more, anyway?

>Also, if this is the case, how does anyone improve their portfolio?

They don't need to. They can point to credits in a game. And they can create portfolio code that isn't a game that competes with their employer's business.

>This just seems rather restrictive to me to say to someone that if you work for us, you have to give up coding outside of work hours entirely.

Yes, we understand. Everyone who first runs up against this clause has thoughts like that. So get over it. Take the job. Get some credits under your belt. You can always strike out on your own later. You're probably not ready to do that yet, anyway, if you look at yourself honestly.

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Original post by Spanky
So in terms of game developers, do they all just give up coding as a hobby? I know there are probably exceptions to the rule everywhere but on a whole, if a game developer wants a job, they have to give up coding games or graphics related things when they take on a job?

I believe it's more common in america to have that clause, much less so here in the uk. I also think it's not really a big thing for companies - I've heard numerous accounts of people asking to have it removed and companies have done without any complaint.

Personally I'd ask for it to be removed and see what the reaction is like. If you're not planning on releasing a compeating product (ie. same platform and same genre) then you're probably fine.

IANAL, etc.

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Unfortunately those kinds of clauses are somewhat common, as are non-compete clauses (where you cannot go to a competitor for X months after employment ends).

In some states, such as California and Washington if I recall correctly, these types of clauses are unenforceable. However, if you are in a state that does consider these clauses enforcible, realize that by signing it you are bound by its terms. If you come up with something super clever, something that's worth big money even, the employer owns it, regardless of their involvement or lack-there-of.

If you consider this an important issue, you have two options:

1- Tell them that this clause is an issue for you and why. Tell them that you cannot accept their offer unless the clause is removed or (more likely) loosened. If they want to hire you, they should be willing to negotiate something that is at least less restricted or exempts your current project. It cannot hurt to ask, this is a business relationship, not a personal one. Any company that takes such a request personally is shady at best, and I would avoid working for them.

2- You can simply choose not to sign the contract and not accept their offer of employment. Let them know clearly that this clause is the reason you're not willing to accept the offer. This is not to be used as a negotiating tactic, its not a bluff, but they may be willing to reconsider if it gets to the point that you refuse their offer.


I've run across this clause in the past and was very up-front about fact that I would not agree to any similarly restrictive clause, but was willing to be reasonable about my requests as well.

Its reasonable for the company to require you to not work on a competing product, not only might it be bad for sales, but the similarity of the projects means there's no realistic way of determining whether any of your features or code originated in the company. Its also reasonable that they stipulate that you cannot use company time or company equipment to work on your project, if you do then you've opened the door for them to claim it as work they've payed for or otherwise facilitated.

Even if they are agreeable to less restrictive terms, the burden is still on you to make certain that all your code and ideas are developed independently. If they feel that there was some infringement and there's money to be made, you have to assume that they will come after you.

Remember that it is a two-way street: Just as you are worried about them walking off with all your hard work, they are worried about *you* walking off will all *their* hard work. Companies often think that they hold the high card (and perhaps they do) because they hold the cash, but just as cash is a sought-after commodity, so are your skills and time; you're simply coming to an agreement about what is a fair commodity trade to both parties.

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Original post by ravyne2001
If you consider this an important issue, you have two options:

1- Tell them that this clause is an issue for you and why. ...

2- You can simply choose not to sign the contract and not accept their offer of employment. ...

You have many more options than this.

3- Sign anyway and ignore it, taking whatever risks are inherent.

4- Don't sign it and try to make it look like an accident. Similar alternatives are to "forget" to bring that particular paper back amongst all the other legal papers you are undoubtedly signing. It looks stupid if you get caught, though.

5- TALK TO YOUR OWN EMPLOYMENT LAWYER. I highly recommend this option.

6- etc.


Ravyne2001 missed one important detail, though. Some locations have basic rights that cannot even be given away through contract, or where a contract that contains them is unlawful. For example, you might sign a contract to commit murder, but that contract is illegal (almost) everywhere in the world. Some locations have similar restrictions on rights related to work and employment, among other "human rights" and "moral rights". If you look down south to the US, many states (including my own) are considered "right to work" states, and strongly protect an individual's rights to work. These protections can even make that kind of clause unenforceable or only partially enforceable.

Lots of companies use scare tactics in contracts, and their legal departments know better than to attempt to enforce them in the courts. Other companies have their non-lawyer executives and managers modify the contracts and stupidly make them unlawful or non-binding. Other times they will unwittingly make the contracts much more restrictive than they ought to be. But since you didn't go to law school, you don't know.

Usually contracts won't be enforced because of high legal costs, but if they feel sufficiently threatened or see that you made enough profit from it, then the company *will* attempt to enforce it and it *will* take a lot of time and effort and money for you to defend yourself. If you believe up front that a contract or agreement might be an issue, take care of it by at least understanding the risks of all the options.




Paying a local employment lawyer is quite cheap -- probably under $100 if you shop around. The lawyer will read your agreements with you, and over the course of a few minutes tell you what it all means specifically for your situation. They know the local laws so they can tell you what you can safely ignore. They can also point out dangerous things that you didn't realize were present.

It doesn't cost much, especially when you consider the long-term costs involved, and it only takes an hour or so. They can fully explain your options, and help you come up with a solution that is acceptable to you.




Also, something important. Beware of letting your potential employer know those qualms until AFTER you've talked with a real live employment lawyer. Some might immediately give in. Some might listen and discuss. Some will tell you that the contracts are standard from their own lawyers and required for their company, and refuse to budge. Some will say it is okay but take it as a big warning sign to watch out for trouble from you. Occasionally some will immediately rescind your job offer, although that might be a good thing.

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Original post by frob

4- Don't sign it and try to make it look like an accident. Similar alternatives are to "forget" to bring that particular paper back amongst all the other legal papers you are undoubtedly signing. It looks stupid if you get caught, though.



Actually, I think that even if you don't sign the contract yet commit to the job and happily get paid for it (and they can prove you committed), that stands as accepting the contract. I may need backing up on that, but I'm pretty sure that is the case.


I had the same problem when I took my current job. As it stands I signed a similar contract, but as long as I am open with them, it doesn't compete with them and it doesn't effect my work they 'allow' me to do it.

I also understand that if I come up with a technology or an idea for them, then it is theirs, which is fair enough because I'm being paid a wage to do so. The company that I'm at gives credit where credit is due (and a spot of cash if they can) so it helps people offer over their game ideas or patents to a company that can do more with it that you can yourself.

Legally, I don't have a leg to stand on but hopefully you're at a nice company that won't give you bother. If they do, it won't make them look very good to future potential employees if they screw you over because you did a bit of work on a MOD or something.

But that said, after working a full day I'm not too interested in doing more of it. The routine is a lot different than say Uni or building a portfolio because you not doing bits and bobs all day, you can't watch tv as you do it, and you can't leave work until late at night when you 'work best'.

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Hey guys,

Thanks for all the responses. I wasn't sure whether it was typical or not but have gathered that, at least on this side of the world, it's fairly common.

Don't ask why but I do have some sick fascination with going to work for 8+ hours and then coming home and spending the rest of the night working on my own stuff. I did that the entire year I spent working there. I'm a rather strange individual I know.

I can understand why the company wouldn't want me to publish something while I work for them. That's pretty obvious. After having talked with them about it, I think we've reached an understanding which is acceptable for both of us. I can still work on it without publishing which is more than OK by me.

At least after reading these posts, I learned that companies will barter with their employees and hopefully be reasonable about it. Thanks for the input from everyone. Ratings++.

Shawn

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Original post by frob
Quote:
Original post by ravyne2001
If you consider this an important issue, you have two options:

1- Tell them that this clause is an issue for you and why. ...

2- You can simply choose not to sign the contract and not accept their offer of employment. ...

You have many more options than this.

3- Sign anyway and ignore it, taking whatever risks are inherent.

4- Don't sign it and try to make it look like an accident. Similar alternatives are to "forget" to bring that particular paper back amongst all the other legal papers you are undoubtedly signing. It looks stupid if you get caught, though.

5- TALK TO YOUR OWN EMPLOYMENT LAWYER. I highly recommend this option.

6- etc.


Most of those simply aren't viable options. #3 and #4 simply choose to ignore the issue, rather than resolve it, which is foolhardy at best. #5 is perfectly valid and I would encourage that above all else. #6 is pretty pointless, we all know you can do any number of weird things in response to such a clause, but pulling a picture of a bunny with a pancake on its head out of your wallet and handing it to the employer isn't likely to get the response you're hoping for, unfortunately. [grin]


Quote:
Ravyne2001 missed one important detail, though. Some locations have basic rights that cannot even be given away through contract, or where a contract that contains them is unlawful...


Perhaps you missed it, but the first couple sentences of paragraph two of my original response says exactly that, citing California and Washington as examples, in the event that I recalled those states correctly.

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Don't ask why but I do have some sick fascination with going to work for 8+ hours and then coming home and spending the rest of the night working on my own stuff. I did that the entire year I spent working there. I'm a rather strange individual I know.


It's not sick, and it's not strange. I've been doing it for 2 years and aim to keep on going. Every programmer I work with does coding of their own in their spare time. And all of us work 10 hour days, and sometimes come in on the weekends. A lot of coders choose to code in their spare time because more often than not when you code for a game company you’re not coding the stuff you *really* want to code, so you code what you have to at work and program what you love to program in your spare time.

Quote:
Is it typical for a game development company to have a clause that states that any work that the employee works on (related to coding obviously), even in their spare time, is owned by the company?


I, thankfully, didn't have this clause. I was worried something like this might come up, so I mentioned to them that I had two game projects I was working on in my spare time. They had a form for me to fill out where I specified what the project was and what kind of work I'd be doing on it, so they'd know ahead of time what I was doing. As for their take on spare-time coding, they essentially said as long as I keep my coding at work and coding at home entirely separate, I can do what I want.

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Pretty much most places I have worked for have had this sort of thing in their contract. Plenty of people have already commented that this is normal so no need to add my part there.

You should only worry about it if you are going to create something that you intend to release or make money off of. For most employed people this is difficult to find the time for, so if I were you I would think seriously about negotiating these points out of a contract if they are likely to be meaningless. My own point of view on this is...who cares if someone else technically owns a demo I wrote? In order to make use of it they'd still benefit from still having me, more than the code and if they want to code is it important enough to care about? Further, do they care enough about all my little demos to want it?

Usually the answer is no. The fact of the matter is that these clauses are in contracts for entirely different reasons to what they suggest. They are in place to protect the company in a position where you might make a claim to something you did for them, which is legitimately theirs. It covers further potential bases for such a claim.

I've heard a number of people say these contract points are unenforcable if you did indeed do the work on your own time and without their equipment but if this is important enough to you to know for sure then only a lawyer would be best answering it.

So unless you think you might invent something, put the negotiation points into other parts of your contract and even use these points to negotiate other ones up.

Oh and if you do negotiate these things out, beware of those who have you sign things after being employed, or don't get around to finalizing all things until your first day. I had this with a company once and declared all of my own engines and code in an appendix they provided. I thought this was a good thing because it allowed me to enumerate previous inventions and continue work on them. Only thing is, it never got processed until I started at the company. HR claimed to have lost it and I had to re-submit. At that point, the lawyers looked at it and realized that I had submitted so much pre-existing technology that they couldn't prevent me from doing anything. It never got finalized or signed, despite some pestering. It was just one of those things they kept promising to do but never did.

Even in this case...did I care? No, because even before I started I realized I was not going to have the time I would like to work on this stuff, I was just doing this 'in case'. I also felt that I could prove I had submitted this prior, should there have been an issue.

Still, there is a good solution there where if people are prepared to let you work on things that already exist, ask if your technology can be named in an appendix and unlike me...don't start work until it is signed.

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Original post by Spanky
Hey guys,

Thanks for all the responses. I wasn't sure whether it was typical or not but have gathered that, at least on this side of the world, it's fairly common.

Don't ask why but I do have some sick fascination with going to work for 8+ hours and then coming home and spending the rest of the night working on my own stuff. I did that the entire year I spent working there. I'm a rather strange individual I know.

I can understand why the company wouldn't want me to publish something while I work for them. That's pretty obvious. After having talked with them about it, I think we've reached an understanding which is acceptable for both of us. I can still work on it without publishing which is more than OK by me.

At least after reading these posts, I learned that companies will barter with their employees and hopefully be reasonable about it. Thanks for the input from everyone. Ratings++.

Shawn
You NEED to get this in writing. Otherwise when you quit and then publish your game, they can get you. It might seem unlikely but if you quit in the middle of a project it can annoy them. Or, worse, if they make you redundant they can claim you have breached your contract and refuse to pay you any redundancy money.

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Firstly, the issues do not start, legally, from the moment you start working, but from the moment you sign. So you really should have all issued cleared up before you sign anything.

Secondly, while this is a standard protection statement for software companies, you can surely negotiate it. Put yourself in your boss's shoes. He does not want more competition especially not encouraged with the tools he owns or with man power he pays. Aside from that, you may find that they are completely ok to giving you freedom of study/work outside the company as long as you don't come into direct competition with them. Be honest and tell them what you want and assure them of the competition issue. Trying cheap tricks like "forgetting you signed" is a sure way to get you both fired and in legal trouble. Need I say it is also dishonest?

Lastly, there is no point in giving away all your time and effort for a paycheck.
Signing all your previous and future work into someone else's company is, pardon my french, plain stupid, unless you own a significant piece of that company. But your mileage may vary.

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