This talk was given by a lawyer. Don’t ask me anything about this. The speaker gave a disclaimer that this was not legal advice. Hire a lawyer. I am not a lawyer. I don’t anything about this either so don’t ask me. Hire a lawyer!
Speaker: Tim Repa-Davies
High level notes
- Email: tim.rd@Sheridans.co.uk
- Safeinourworld.org – Patron and a good charity
- Its ok to negotiate your contract
- See what is happening to your game IP
- Bad licensing terms
- Bad payment terms
Negotiate your contract
- The publishing contract is against you
- Make fair and reasonable changes – you can’t gett them tto rip up theirs and have everything on your terms. The contract should be a meeting in the middle.
Watch out for these terms that publishers making your contract will use
- “This clause is standard” – no it isn’t – there is no standard clause except for the boiler plate text at the end of the contract. But you should still read that.
- “All our developers sign the same terms, we can’t give on this” – this is definitely not true.
- If you hear those things, be on guard and be careful.
- Read the stuff at the end they sometimes slip things in there
What’s happening to your IP
- Are you giving IP to your publisher?
- Are you splitting ownership with your publisher?
- Assignment – where the publisher buys the whole ip or a % – this is messy. You can’t split IP into a percentage. Gets complicated.
- Trade marks? Should be limited to the game the publisher is publishing
- Bad license terms that go on forever – “indefinite” – this is bad.
- Breadth of the licensing terms – sequels? Merch? Soundtrack? Film tv rights? NFTs?
- You might have an agreement with your composer. – you can’t give those to the publisher if you had a composer contract before
- Platforms and porting – is the publisher developing these?
Bad payment terms
- Front end vs back end vs live ops support costs? – will the publisher doing this?
- Know how long it takes to get paid
- Don’t be liable for publisher delays or failures – If a publisher is late you want to get written approval that you met your deadline from them so that they can paid for a milestone. Even if they are delaying something you shouldn’t be held liable for this.
- Trade marks – What is going on? – Anything that identifies goods and services.
- Check out Chris Reed’s IP Law talks – they are really good.
- Exclusivity is suspect – “Developer hereby grants the publisher an EXCLUSIVE license to use, reproduce and distribute the trademarks OF THE DEVELOPER and the game.” – you don’t want to let them using your developer names. That is weird because you can’t refer to your own game name or studio on social media. Also how long they have it?
- Don’t make them exclusive. Carve out a rule where you can use them on socials and your discord newsletter.
- Watch out “publisher will file a trade mark application for the game at publishers cost using publishers trademark counsel” – Publisher takes on the cost of filing a Trademark. That is good. But what isn’t written here is worrying. It is not clear in whose name you are registering the trademark. It should be registered in your name.
- Also look at what territories and classes are publisher going to register them.
- Is the cost of the trademark recoupable by the publisher?
- Pro of publisher doing it
- Saves time and cash
- Easier enforcement because they are familiar with doing it.
- Con of publisher doing
- They own the registration – watch out.
Publisher obligations and standard of publishing
- Make sure the list of what the publisher will be doing for you in the contract.
- Publishers will sell you these great tales of how much they will do for you. But it doesn’t matter what they say in their discussions if it isn’t in the contract.
- Sometimes the lawyers will add this clause to the contract: “This agreement and any appendixes or exhibits hereto constitute the complete entire agreement of the parties and supersedes all previous communications oral or written and all other communications between them relating to the subject matter hereof” – this means that if they promised to do something for you in an email it doesn’t count. Only what they listed they will do in the contract counts.
- Only option out of the agreement is where the publisher is in material breach.
- If the publisher does not meet these standards then give the developer some leverage
- That way if a publisher makes a mistake you can get some stuff back.
Baseline obligations publishers must do:
- Publish the game with all reasonable skill and care.
- Publish to the same standard that it provides to other games and developers in its portfolio (if not a higher standard) – this prevents publishers playing favorites with other games. Where they do all this stuff for their best game but not making and doing stuff for your game.
- Best commercial terms available with all third party distributors – so if they have a sweetheart deal with a platform they should pass the savings on to you.
- Commitment to release the game – Also include a date when they must publish it by – Some publishers don’t have this. They just never publish the game.
- Publisher shall use its skill and knowledge to launch the game at an appropriate time following the completion of the Game’s development”
- “Publisher is not obligated to make or continue to make the game commercially available” – watch out – this means the publisher can pull your game at any time.
- “Publisher will use commercially reasonable efforts to ensure the game will be released within 3 months of delivery of gold master to publisher by developer” – better because it tells you when the clock starts.
- “Publisher will ensure release of the game on all agreed upon platforms” – better
- Porting obligations – So they should have the same obligations to you that you are for delivering the game.
Warranties – boring but important
- An assurance or promise in a contract, the breach of which may give rise to a claim for damages.
- Breach of warranty = breach of contract
- Also add a time period to make it right.
- Look out for warranties you cannot give
- Publisher Materials / Content
- Third party content – like unity unreal or code libraries you use.
- Watch out for this: “Developer is the sole absolute legal and unencumbered owner of the game and the copyright and any other intellectual property rights in the game’ – this is problematic because many developers use unity, unreal, gamemaker.
- Warranties for 3rd party materials should be called out separately – valid licenses, asset stores.
- Also include what the publisher is giving you – like localization/translations of the game they purchased for you.
- Check for cure periods for both sides – if you are late a few days, they can’t just walk away. It tells you that you have some time in case.
Can your publisher should just walk away?
- Termination – unilateral right that publishers can walk away at any point.
- Common theme is there is termination timeline.
- The termination clause isn’t as bad as those other terms in the contract. The lawyer mentioned he understood the publisher needs this. It is just a reality of the business.
- But even if it is ok, the developer needs something in return. It should be a financial consequence where you get something back.
- If terminated during development – you need to get milestone payments for everything you delivered. Payback for non refundable costs like software or hardware you purchased, freelancers, contractors etc.
- If a contract ever says they can ask you to pay them back for any costs you incurred.
- Just make sure in your contract that NFTs are called out in the contract. They must notify you if they want to make an NFT. They can’t make an NFT with any of your IP.
- Make sure your stance of NFTs is in the contract that they will not make nfts without running it by you first.