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Need pro help - Online dev-team approaching publishers

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Hi, I'd really appreciate any time and help with this. Myself and an online friend have been making this game for a console and are almost done. I don't want to disclose anything about it, but let's just say hypothetically that it's a great game, looks and plays great and works perfectly on the hardware, it's big, fun and full of features, and we have no fear that the game itself is a winner, despite perhaps being a little violent. We've started e-mailing publishers for contact details, mentioning just the very basics like the genre, theme, platform and few key features, making it clear that the game is deeply developed and not just some scribble on a napkin, and just asking for specific contact details to pitch. We've had some very eager and friendly personal replies from big names so far, based on our small e-mail, so things are getting very exciting, but also very confusing for us. We've been so busy making this game that the other side of things have been neglected. As a team, we are ~5 developers based all over the world, pretty ordinary guys, only communicating through the internet. The team has a .COM domain and self-implied copyrights on the site, but, that's about it! And that's what we're worried about. Even though we feel our game is great and it's 100% original, it's because we're not all in the same rented office makeshift-studio with a logo out the front, a secretary to answer the phone and all the TMs, (R)s and (C)s everywhere, that we just won't get taken seriously, no matter how great our game might be. :( But in the meantime we do actually have a game ready to pitch, and time is marching on. How can we know if we're ready to make this approach? Is it worth renting an office, registering a proper business, hiring a secretary, buying a coffee machine and water cooler, etc. before we make this pitch? Are we being paranoid or are these real concerns? In all honesty, we really hope a publisher will help us get to this point and help us make everything proper, give us some advance to obtain certain things like proper copyrights, help us get registered as a business and up to scratch with everything. We have a "proposal" document we will share with publishers that explains our situation and how we'd like them to help us, trying to be honest and hoping that won't be our downfall. Are these realistic hopes? or should we take out loans, borrow cash and invest in taking care of these things before pitching? If so, what _exactly_ should we take care of in order to pitch? Can anyone recommend information and advice about exactly what publishers expect developers to have all in order before pitching their game project, beyond the actual game itself? Any experience with this? Thanks so much for reading. :)

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At the very least you'll want a collaboration agreement setting out ownership, control, voting process among contributors, maybe an agreement to form an LLC contingent upon a good faith offer from a publisher, and what happens if things go south.

You'll also want to go ahead and register your copyright, and prepare a standard bilateral NDA that you can ask (of course there's a chance they'll refuse) publishers to sign before showing the product and documentation.

If you're confused about any of this give me a call or shoot me an e-mail.

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Quote:
Original post by Deimos72what _exactly_ should we take care of in order to pitch? Can anyone recommend information and advice about exactly what publishers expect developers to have all in order before pitching their game project, beyond the actual game itself? Any experience with this?
Thanks so much for reading. :)

Frequently Asked Question #21.
http://www.sloperama.com/advice/lesson21.htm
Thanks for reading it.

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Quote:
Frequently Asked Question #21.
http://www.sloperama.com/advice/lesson21.htm
Thanks for reading it.
I was just reading that now! :D So far a lot has been about trying to submit incomplete games and ideas, and other situations that don't really apply to our current circumstances, but I'm still reading through it all.

Quote:
...very least you'll want a collaboration agreement...also want to go ahead and register your copyright, and prepare a standard bilateral NDA...
Thanks for the reply. :)

I think I understand how the collaboration agreement stuff goes, but we don't really like the idea of a NDA by us, to put publishers under, because it would slow down the process, as well as potentially scare them off. It would take ages, time we don't have. Maybe that's naive and risky, but I guess it's a chance we're willing to take. Slowing down the process outweighs having our pitch media leaked. We're more concerned about copyright than leakage.

As for officially registering copyrights, I'm not sure how expensive that is but I don't believe we can currently afford to do that, especially considering there is no gaurantee the game will find a publisher, no matter how good the game is. Then that money is wasted, when I'm sure there are (though less secure) free alternatives to copyright protection, that should be sufficient enough at this stage of our pitch.

I think it would be better to go for whatever free alternative we can, however we can fortify that, and take our chances. What we will pitch initially is very basic plot and gameplay info, a video, screenshots and feature list. Once publishers see the "pitch" and should we have requests for our full "proposal" and playable demo, then we would definitely consider registering copyrights, talking to a lawyer and investing in a proper company for ourselves.

Would this be a sufficient happy-medium approach, at this point of the pitch?

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1. Do you have a playable demo? I think that any pitch would contain at least a vertical slice showing the basic design of the game. You should also include a pitch doc that includes artwork, game overview, target demo and a proposed budget for completion.

2. Are you a licensed developer for the target console? PC and mobile doesn't really require that the platform manufacturere approve your game concept, but Sony, Nintendo and MSFT all require that your game meet TRC's and obtain concept approval. This might be a pre-requisite to getting funding from developers.

3. Have the team members memorialized their agreement in a writing? Copyright protection exists at the moment of creation. Filing in the US grants certain statuory rights, but their is no timeline for filing with the copyright office. Most register register the computer code when the game is published (this covers the audio visual elements as well) after it has been release. The cost to file in the US is $35 per application and can be done online. However, you will most likely need assignments from each of the team members to the entity you ultimately set up in order to establish a chain of title. Also if you used 3rd party development tools, you will need to make sure you can incorporate them into a commercial product under the license. Be wary of open source tools (expecially anything under GPLv3) as they may come with limitations that will scare off the publisher.

4. NDA's - publishers generally require that you sign their form. They should still be reviewed by a lawyer familiar with the applicable governing law.

5. Have you considered self-publishing alternatives? In this economic climate, you should expect to be disappointed by the publishers. It is a fact that less games are getting greenlit by publishers. It is not impossible, but a lot of developers are releasing games without publisher support.

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Quote:
Original post by Deimos72
As for officially registering copyrights, I'm not sure how expensive that is but I don't believe we can currently afford to do that, especially considering there is no gaurantee the game will find a publisher, no matter how good the game is.


Well your game is copyrighted even if you don't register it. But if you want to officially register it, would you consider $35-65 expensive?

(I'm assuming US Copyright here, by the way)

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Quote:
Original post by kdog77
...
1. That's all covered, and then some.
2. That's a tricky question, we do need a particular technical something to get the go-ahead from the console company itself, but we have discovered it's only a question of money and, if we can get published, will definitely happily pay to get it. Plus, we don't need funding for this development, it can be "gold" without the publisher or console-company paying us anything at all.
3. I trust my associate with my life, so I'm sure whatever legal agreements we need to manifest will be no problem. The question is, do we need to ensure the publishers of such agreements and in what form?
4. Another tricky question. We have 1 "NDA" from a publisher and I've read over it numerous times, it merely states a bunch of obvious things like "no business relationship exists, you can't sue us for a damn thing, if we don't publish your game then go away", etc. but it also says a lot of reassuring stuff too. Such a contract I'm more than happy to sign and fax away to them. Another type of "NDA" might state that we can't share our pitch with any other publisher, right? So "NDA" is a tricky and subjective term to throw around, it could imply many differing serious legal factors, subjective to the document itself. But if they are all like the one I've read so far, then wonderful.
5. We can't self-publish on this particular console.

Quote:
Original post by Rycross
would you consider $35-65 expensive?
Oh right, I was probably confused with trademark patent then. I'm not sure what $35-$65 copyrights, though, the title of the game? So it's $35-$65 for every little thing we want to copyright to the team, which itself also needs to have a copyright? All the character names, etc.?

Sorry if that's a silly question. Thanks for all the help!

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Deimos wrote:

>I was just reading that now! :D So far a lot has been about trying to submit incomplete games and ideas, and other situations that don't really apply to our current circumstances, but I'm still reading through it all.

Yes, well, just ignore all the parts that don't apply to you, and then what's left does apply to you.

>we don't really like the idea of a NDA by us, to put publishers under,

Most publishers will want you to sign their submission agreement, actually.
http://www.sloperama.com/advice/lesson35.htm

>because it would slow down the process,
>It would take ages, time we don't have.

Don't try to rush things. And don't exaggerate things all out of proportion. You always exaggerate things so much, the whole universe is going to explode, and it'll be all your fault.

>as well as potentially scare them off.

Anybody that would be "scared off" by your asking them to sign a simple NDA (in the odd chance of someone who doesn't ask you to instead sign their submission agreement) is not somebody you want to do business with anyway.

>What we will pitch initially is very basic plot and gameplay info, a video, screenshots and feature list.

So you're planning to pitch "a non-interactive animation." You probably didn't follow the link from FAQ 21 to FAQ 11. You ought to take a look at the chart there. A non-interactive animation is a lot less likely to make for a successful submission than a fully interactive completed game. http://www.sloperama.com/advice/lesson11.htm

>we do need a particular technical something to get the go-ahead from console company itself,

IOW, your concept is for a console game and your team doesn't have professional experience so can't get the SDK. That's a huge problem. This is sounding less and less likely like your submission pitch can go well.

>but we have discovered it's only a question of money and, if we can get published, will definitely happily pay to get it.

Getting a development license from a platform holder is NOT "only a question of money." They have other requirements too.

>do we need to ensure the publishers of such agreements and in what form?

A publisher needs to know that your team is a bonafide business entity legally empowered to sell the thing you're offering them.

>Another type "NDA" might state that we can't share our pitch with any other publisher, right?

No.

>I'm not sure what $35-$65 copyrights, though, the title of the game? So it's $35-$65 for every little thing we want to copyright to the team, which itself also needs to have a copyright? All the character names, etc.?
>Sorry if that's a silly question.

You need to read about copyright and how it differs from trademark and patent.
http://www.sloperama.com/advice/lesson39.htm

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Thanks Tom, but you've misunderstood some things.

First of all.
Quote:
You always exaggerate things so much, the whole universe is going to explode
Did you mean to say in general "IF you always exaggerate...", because I'm not aware I've exaggerated anything.

Quote:
So you're planning to pitch "a non-interactive animation."
I've already stated the game is playable at 99.9% complete. The line you quoted from me was reference to initial contact.

Quote:
your concept...can't get the SDK
It's not a concept anymore, and we've been able to develop using an SDK, it's not just the official one we need. I'm not a coder so I can't say for certain here, but to the best of my knowledge it can be obtained by us if we have the cash.

Quote:
team is a bonafide business entity legally empowered to sell the thing you're offering them
This is one of the issues, we're not a business, but I don't imagine it's hard to literally be "legally empowered to sell the thing you're offering them" since we own every byte and every pixel of it, there's no one else involved and no one we need to pay royalties to or anything like that. Surely a publisher, knowingly contacting a virgin indie team, would understand this.

So this brings me full circle to my original question, should I be taking care of these matters (which and to what degree) _before_ making an official pitch, or propose and hope that a publisher can meet us half-way and help us take care of these things? (keeping in mind our game is a> 99% done/playable & b> pretty good!)

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What console is it? Its more then money to get the devkit for any of the popular consoles. My experience is only with Nintendo but I'm sure Microsoft and Sony are the same. You need to have a physical office (not home office) that they can audit to see if its sufficently secure to hold the devkit. Even if you have the office and money they can still turn you down if they don't like the idea. Add to that your team has no other professional experience and you got a major uphill battle to make it as a console game. At the very least you are going to need a playable demo to have any kind of chance I think.

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You need to have a physical office...see if its sufficently secure
Hm, we'll look into that then. Programmer may have been fed false information, but we were led to believe it's not a big deal and that publishers can help us out. Otherwise it's a bit of a paradox when it comes to indies finding publishers. Seems impossible, even if you make the best game ever.

Quote:
your team has no other professional experience
That's true professionally, but we do have a lot to show from previous developments, hopefully it's in some small way a redeeming factor.

Quote:
going to need a playable demo
We certainly have one ready to send out, as part of our proposal. We decided at the beginning to do as much development as possible before approaching publishers.

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Hi Deim, you wrote:

>you've misunderstood some things.

Yes, apparently so.

>Did you mean to say in general "IF you always exaggerate...", because I'm not aware I've exaggerated anything.

You said the NDA process would "take ages." I was making a small joke. You can safely ignore it.

>I've already stated the game is playable at 99.9% complete. The line you quoted from me was reference to initial contact.

Sorry I missed that part. If you have a 99.9% complete game, you should NOT send a non-interactive video only. It's OK to have a video, but you have to submit the whole thing lest they think the game doesn't exist yet.

>This is one of the issues, we're not a business

Then you have to become one.

> should I be taking care of these matters (which and to what degree) _before_ making an official pitch,

Yes. That's what I said.

>or propose and hope that a publisher can meet us half-way and help us take care of these things?

No. They don't want to deal with non-bonafide non-businesses. I still recommend you read all those links I pointed you to before. Sorry this forum is not friendly for posting of URLs. You have to copy and paste to visit those web pages.

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Quote:
Original post by Deimos72
Myself and an online friend have been making this game for a console and are almost done.
It would be helpful if you clarified what system it is for - there is certainly no reason to keep that information secret and you will get a lot better information if you tell us.

Quote:
But in the meantime we do actually have a game ready to pitch, and time is marching on. How can we know if we're ready to make this approach?

Read this http://www.obscure.co.uk/articles-2/the-video-game-acquisitions-process/ to better understand the process you are embarking on.

Quote:
In all honesty, we really hope a publisher will help us get to this point and help us make everything proper, give us some advance to obtain certain things like proper copyrights, help us get registered as a business and up to scratch with everything. We have a "proposal" document we will share with publishers that explains our situation and how we'd like them to help us, trying to be honest and hoping that won't be our downfall. Are these realistic hopes? or should we take out loans, borrow cash and invest in taking care of these things before pitching?

Bin your proposal because they won't help you - that is your job not theirs - it is your business after all. In fact if you walk in and start asking for basic help they are likely you rub their hands with glee and fleece you.
Rule #1 - never take advice from the other party in a business deal. Their responsibility is to get the best deal for themselves, not to help you get the best deal you can.

Quote:
What we will pitch initially is very basic plot and gameplay info, a video, screenshots and feature list. Once publishers see the "pitch" and should we have requests for our full "proposal" and playable demo, then we would definitely consider registering copyrights, talking to a lawyer and investing in a proper company for ourselves.

Would this be a sufficient happy-medium approach, at this point of the pitch

If you went into a shop to buy shoes and the staff brought you a nice description of the shoes you asked about would you buy the shoes? Most likely you would send them away to bring you the actual shoes or possibly walk out in disgust. No publisher will sign a game without seeing a demo first - many won't even review your proposal unless it has a demo. Many will write back and ask for a demo but some may just bin your submission and focus on the many many other proposals they have that sent a demo.
rule #2 = never make it needlessly complicated for the publisher to sign your game.

Quote:
Original post by Deimos72
3. I trust my associate with my life, so I'm sure whatever legal agreements we need to manifest will be no problem. The question is, do we need to ensure the publishers of such agreements and in what form?

I hang out in a business forum and the 2nd most common topic (after "what sort of business should I set up to make money") is "my friend just ripped me off.... oh and we have nothing in writing".

When you sign a publishing deal you are required to warrant that you have the necessary rights to sign the deal. You won't be able to do that without an agreement that defines ownership of copyright etc.

Quote:
4. Another tricky question. We have 1 "NDA" from a publisher and I've read over it numerous times, it merely states a bunch of obvious things like "no business relationship exists, you can't sue us for a damn thing, if we don't publish your game then go away", etc. but it also says a lot of reassuring stuff too. Such a contract I'm more than happy to sign and fax away to them. Another type of "NDA" might state that we can't share our pitch with any other publisher, right? So "NDA" is a tricky and subjective term to throw around, it could imply many differing serious legal factors, subjective to the document itself. But if they are all like the one I've read so far, then wonderful.

The question is so tricky that I couldn't actually find it in that statement.

Quote:
5. We can't self-publish on this particular console.

It is possible to self-publish on every console if you do things right and have the resources.

Quote:
.....should I be taking care of these matters (which and to what degree) _before_ making an official pitch, or propose and hope that a publisher can meet us half-way and help us take care of these things? (keeping in mind our game is a> 99% done/playable & b> pretty good!)

You need a collaboration agreement before you send the proper pitch. I don't care how much you trust your friend it is just dumb to proceed without one. It's easy to get agreement over this stuff when your product is worthless but amazing how quickly cracks start to appear at the slightest hint that there may be money involved. People suddenly decide that what you think the agreement is differs from their understanding or that their contribution is more important to the project than yours. With nothing in writing things quickly go off yhe rails.

You don't need to be a registered company to send the pitch but you will need to be a company to sign a publishing deal and get the game accepted by the console company.

What you certainly should not do is rely on the publisher to help you.

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Good advice. I'm contacting a couple of publishers about these issues now to hear it straight from them. We'll look into copyrighting and agreements, and making it easier for the publisher to access the proposal and demo online straight from the intial pitch without requiring them to contact us, and see how we go because that's probably the best we can do.

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The truth is unpaid indies for the most part don't make console games. Even like the Wiiware only games are usually from teams with proven track records of putting out complete games. Consoles are a different beast that they try and keep crap games to a minimum. A passable PC game won't make the cut for a console (I know from experience).

A publisher can help you get a devkit or maybe even loan you a spare one. But if they are loaning you one then they are responsible for it if something happens. So you can bet they aren't going to want to give one to random people on the internet that have no accountability. This still means you probably need an office.

We don't know what your game is so maybe it will blow people away and you will get a console deal. But you should be prepared for the fact there is probably a 90% chance the game is turned down. Publishers are getting submissions all the time. You should be prepared to be able to port the game to PC or Mac. Unless it is a Wii game if the game would play well on a console then it will play well on a computer. If you can prove you have a successful game on your hands then a publisher will be more likely to deal with you. The plus side is you can make some money to get a proper business setup as well.

I ask again, what console is it for? Telling us the intended platform isn't giving away any secrets of the game. If the game was created on a black market/pirated version of some SDK you might not get any response no matter how good it is. If its a homebrew setup then I wouldn't think there would be an issue.

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Thanks to everyone for all the insight, we've really appreciated the discussion. We feel much more informed and better prepared now, and while we realise we still have some serious obstacles on the business side of things, no matter how it's looked at, I'd like to share some e-mails from publisher contacts that will help explain our current perceptions. They've been edited for obvious confidentiality reasons, and they are both from fairly well-know companies you would have heard of:-

This is one of several that shows eagerness from a publisher to accept and consider unsolicited web-based (e-mail) "pitches", no NDA:-
Quote:
Hi,
I’m the person you need to speak to. Please email me with all the information about the game and the team (4mb limit for attachments)
Kind regards,
####.

> Dear [publisher], we would like the opportunity to pitch our [genre] game
> project for [platform] to you.
> Do you have contact information specifically for independent developers
> to pitch their game projects? Thanks.


And this is one I sent to a friendly publisher manager after realising the concerns:-
Quote:
I can’t answer your questions sorry. Every circumstance is different but nothing is impossible

> Before we pitch our project, I'd like to ask a few questions in order for
> us to be better prepared.
> We are currently not a legitimate business, can we become one only after
> discovering our publication potential?
> Regarding the official development kit, should we have trouble obtaining
> one from #### is it possible a publisher like yourself might help us make
> contact with #### to obtain one?
> Thank you so much again for your time.


I know "nothing is impossible" is a vague response, and I could have well asked "can I fly, grandpa, can I fly?" and gotten the same generic response, but these e-mails lead us to believe that things aren't necessarily always SO difficult and beaurocratic, even though surely they usually are, there is definite hope for us. Negotiations and compromises can be made.

But, should I be worried by such responses, too eager and friendly? Are these companies only out to somehow screw little developers like us over in this deceitful way? Or is it true that anything really is possible? They obviously take the time to be friendly and reply directly to us, quickly, despite knowing we're independent developers. Why would they waste their time on us, even in this small way? This is what I don't get.

On one hand the publishers themselves are practically saying "just go for it" (at least that's our perception so far), but on the other hand are told we need to spend a lot money establishing a business, office, trademarks and hiring lawyers before even trying to pitch and discover any potential. Both conflicting yet real perspectives with definite risks and downsides, either way. This is all still really confusing, what are we to believe.

If life experience has taught me anything it's that truly "nothing is impossible" because truly "every cicumstance is different". Or maybe it's all some big practical joke and our e-mail account has been hijacked by hackers. :S

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"deimos," you wrote:
>should I be worried by such responses, too eager and friendly?
>Are these companies only out to somehow screw little developers like us over in this deceitful way?
>They obviously take the time to be friendly and reply directly to us, quickly, despite knowing we're independent developers. Why would they waste their time on us, even in this small way? This is what I don't get.

The submissions manager is just doing his job. Don't try to read more into it than that.
His job is to field submissions, including submissions from unknown entities, to see if there's something marketable there. Something that would add to his company's bottom line.

>On one hand the publishers themselves are practically saying "just go for it" (at least that's our perception so far), but on the other hand are told we need to spend a lot money establishing a business, office, trademarks and hiring lawyers before even trying to pitch and discover any potential. Both conflicting yet real perspectives with definite risks and downsides, either way. This is all still really confusing, what are we to believe.

We have not been lying to you. If the submission manager is ready to talk to you now, fine. Talk to him. But in the meantime you also need to be setting up your business entity, and getting a lawyer, in case the publisher does want to do a deal with you. Don't take the submission manager's friendly manner as a sign that he's your friend. In a way, he is, but his main loyalty is to his employer. Thus you need to set up your business entity and have a lawyer, if this goes forward. Those things take time, so you should be working on them now.

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Telling a publisher you have no idea what you're doing, which is what that second e-mail reads as, is not a good idea. If you want to play ball, you needs to play by the rules of the game.

* You need to incorporate and become a legal entity. It isn't expensive at all.
* Within your company, you need a collaboration agreement. It saves you from a world of headache and legal issues later.
* It doesn't matter if you don't like the idea of an NDA and that you feel it will slow the process. Every professional company uses them. If you don't it just shows you don't have a clue about the business.
* Publishers like to visit from time to time. If you don't have a permanent office, I'd highly suggest you secure a nice meeting room somewhere to utilize when needs be.
* Also, the console manufacturers won't let you purchase dev kits from them unless you're a business at a physical location (ie office).

Read tsloper and Obscure's websites. Read them thoroughly, because every bit of information they contain is information publishers are going to expect you to know. Many publishers WILL bully young developers who don't know any better because they can make more money that way. It isn't personal, it's business.

[Edited by - zer0wolf on December 7, 2009 11:03:30 AM]

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I was curious, so I did a little research for myself.

As far as I can tell, if I were in the OP's position it'd cost me $50 to form a domestic LLC in Arizona, USA. Seems cheap, but I can't find any evidence that it'd be more expensive unless I used some middle-man company to do the paperwork for me.

I found a PDF document from the US Copyright Office that discusses how to register for copyright on computer programs:
http://www.copyright.gov/circs/circ61.pdf. Here is an interesting quote:
Quote:
The Copyright Office has consistently believed that a
single registration is sufficient to protect the copyright in
a computer program and related screen displays, including
videogames, without a separate registration for the screen
displays or a specific reference to them on the application for
the computer program.

They go on to say that you can register for copyright of your videogame electronically, which is nice because that is the $35 option.

For the NDA with the publisher, this one looked pretty good. The collaboration agreement/NDA for contributors would be internally developed. That could be a weakness in a future lawsuit if it is unclear in any way, so one might consult a lawyer there, but I think it could be done without legal advice.

So it'd cost me $85 to become an LLC, register copyright on my video game, and start talking with publishers. Anybody see any holes here?

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That's all really nice and the problem is - I had no idea it's that cheap or easy.

I'm the lead designer/artist and I'm from Australia, I can tell you that much, a very remote part. The progammer is in Europe. Neither of us are businesspersons or lawyers, especially me. This is the main problem with establishing any kind of studio. Can't do it in some tin shed in the desert with kangaroos hopping by. We'd all need to relocate, somewhere we can recruit local talent. This is the big issue and where all our current funding would get drained, just to figure out if we stand a chance or not. If we have a chance, of course we'll establish a studio and get proper, but in the meantime we can't possibly do that.

So we've decided to do as much as we possibly can with all the advice we've received from this thread, copyrights, registering an "online business" and team agreements, etc. As part of our proposal it will state we're an "internet team"/"internet business", officially based in Kangaroo Creek, and require the finished code only be "ported" using an official development kit, because, from what I've been told, it would probably take less than 30 minutes use of the damn thing anyway! If our game has potential of being published, our proposal states we require no funding to pay for the development kit plus relocate and establish a proper business somewhere. We can pay for that ourselves and our proposal makes that very clear.

Someone suggested that we can let the pitch link directly to the full proposal, by uploading multiple versions that we can keep private and track. From the proposal we can link the publisher to a playable demo, which is also private and unique to that 1 visitor, via our own NDA they will need to click "I Agree" to and we can track and record it. If there are any leaks, we should be able to track which unique version it is.

We (/will) have everything else in check apart from those 2 issues and will have pitched by this time next week.

Thanks again, and any more advice is appreciated. Will definitely drop back in and let you guys know how we went. ;)




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Quote:
Original post by Deimos72
.....Plus, we don't need funding for this development, it can be "gold" without the publisher or console-company paying us anything at all.

So you have to approx US$30k to pay for the testing, submission and age rating process already? Also what about the cost of marketing?

It is a major plus point that your game is almost finished. It reduces the publishers risk to some degree but don't let that fool you. There are considerable costs involved in publishing a game which is money the publisher is risking.

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Original post by lmelior

For the NDA with the publisher, this one looked pretty good. The collaboration agreement/NDA for contributors would be internally developed. That could be a weakness in a future lawsuit if it is unclear in any way, so one might consult a lawyer there, but I think it could be done without legal advice.

So it'd cost me $85 to become an LLC, register copyright on my video game, and start talking with publishers. Anybody see any holes here?



A few problems with that NDA. To name just a few:

1. Proprietary/confidential information is not defined, and there is nowhere where a reference to the definition of confidential information can be pointed to. For instance negotiations (including what's put on the table or taken off), game concepts, additionally contemplated content, treatments, etc. should all be spelled out in an exhibit or in the document itself;

2. it's unilateral, which means a publisher will likely say "this doesn't work for us, here sign ours instead". Publishers do not want developers they are negotiating with disclosing details of the negotiation-- and it's unlikely that YOUR information will be protected under THEIR NDA;

3. Choice of law is Texas-- what are the chances that any of the publishers in question are in Texas?

4. There's absolutely no statement concerning what happens in the event of breach; no arbitration, no statement of equitable or legal relief, etc. While this isn't mandatory to have rights under the contract, it is much easier to resolve disputes arising from a breach if the procedure and available remedies are spelled out up front;

5. There's no jurisdiction provision. Where can this be litigated? Where should this be litigated?

6. No statement regarding attorneys' fees. This is relevant, since international law's treatment of attorneys' fees (winner generally entitled to attorneys' fees, at least under UK law iirc) doesn't hold true under U.S. law. Which is also why the choice of law provision is relevant.

Be very, very careful when relying on form agreements. There's a 99% chance that it will not suit all of your needs. Furthermore if you present someone with a contract and you can't explain EVERY SINGLE PROVISION in that contract, you may wind up agreeing to things that aren't in your best interest. You will run into this same problem when drafting your collaboration agreement/operational agreement for your business.

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Original post by lmelior
As far as I can tell, if I were in the OP's position it'd cost me $50 to form a domestic LLC in Arizona, USA. Seems cheap, but I can't find any evidence that it'd be more expensive unless I used some middle-man company to do the paperwork for me.


There's a problem with that though. The OP strongly implies that some of their team are not located in the US. Adding international workers can make things tricky. That's why it'd be a good idea for the OP to consult a lawyer when setting up their business.

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Deimos,

I think many of the posters have given you enough information to contact a local attorney in Australia to go over local incorporation issues. No need to keep banging on this point. You can set up a virtual entity nearly anywhere but each jurisdiction is different so you should have some with experience in Australian corporate law tell you what is what down there.

As for the rest of your comments my thoughts are as follows:

1. Biz Dev people at publishers rarely say "No" without seeing the pitch. They don't like coming off as the bad guy and so fielding questions about the submission process is a no-brainer. I wouldn't interpret their response as interest in publishing your game.

2. Not being a licensed developer will be a stumbling block as the publishers make reps/warranties to console manufacturers that they use only licensed developers. Forget what other people tell you about the process and contact MSFT about registering to be a licensed developer. I am guessing it is MSFT because SCEE and NOE both allow self-publishing on their digital storefront. As far as I know MSFT is the only one requiring 3rd party publishers for XBLA.

3. Gold Master means the first party has approved the game for manufacture. This of course assumes you have concept approval, obtained ESRB/PEGI rating and localized the game for EFIGS.

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