Pleased to announce 'Wig-Indies' - a new initiative which continues our long-running commitment to supporting incredible new games businesses of tomorrow.
Free legal consultations, indie packages, flexible fee models and more – all offered by people that love and play games.
Practical risk of being pursued obviously decreases if the entity you signed the NDA with no longer exists. However, legal risk does still exist - info can still be confidential even if not explicitly mentioned in an NDA, and enforcement rights are often transferred elsewhere before a company folds.
We have just locked CS1 as my firm’s first Games Club game, in prep for CS2 - cannot wait - good luck!
*Repost from Jan 2024*
I've been working with indie studios as a games lawyer for nearly a decade.
For anyone taking recent events as a chance to start up their own studio, I hope these legal tips help.
Good luck out there!
Disputes regarding indie game IP ownership are unfortunately common.
Indie dev often starts between friends, where noone wants to talk business.
But it's not that complicated - set up a company, put the IP in that, and get agreements with contributors. It'll be worth it.
There are so many occasions though where the boundaries between the above start to erode, and one starts blending in the other, which can significantly impact deal terms. Terms can also vary based on project budget (indie vs AAA) and platform (mobile is its own beast).
PORTING: engaging a third party to create a version of a game for a new platform - typically flat fee deals - but can be some fun / complex variations on this (eg porting studio is developing and publishing a new adaptation of an existing game with creative differences / different monetisation).
IP LICENCE: typical licensor / licensee agreement - usually involves a licence fee or MG - where this gets interesting is in (a) tripartite relationships (eg deals involving 3rd party IP) and (b) mobile adaptations (eg licensing a popular Western PC IP to a Chinese Mobile studio).
CO-DEVELOPMENT: balance of responsibilities more 50/50 - one party may be providing the IP, another the creative and technical wizardry, maybe jointly funded - deal terms naturally more balanced (eg rev shares, approvals, IP ownership etc) but can vary significantly here in my experience.
WORK FOR HIRE: party A engages Party B to create part of (or sometimes the entire) game - could be dev / dev (eg studio outsourcing art services) or dev / pub (eg pub commissioning an external porting studio) - various payments structures (time & materials, flat rate, maybe a limited rev share).
SUB-PUBLISHING: pub sublicenses its publishing rights to another pub, usually to navigate territorial restrictions (eg China), complex markets (eg Japan) or to take advantage of another pub’s expertise (eg a PC pub working with a mobile-specialist).
CO-PUBLISHING: deal where publishing responsibilities are split - usually dev / pub where dev is assuming some of typical pub responsibilities (eg age ratings, localisation) - dev usually retains IP ownership - publisher usually collects revenues, but not always.
PUBLISHING: typical dev / pub deal - pub provides funding and/or publishing services in exchange for exclusive rights to distribute the game on specified platforms - typically a "net" revenue deal - dev typically retains IP ownership, but not always.
Ultimately what you call a deal doesn’t matter. But I do think that understanding the underlying nature of the relationship helps set baseline deal terms and expectations, which the parties then build from. Below are some of the main deal types I regularly come across in games:
VIDEO GAMES DEALS - a 🧵
I spend 75% of my working life negotiating games deals. They’re complex, messy and completely non-standardised (i.e. great fun), which often results in an inconsistent use of deal terminology.
Why am I just seeing this announcement now?! This looks fab - congrats!!
This is why getting registered trade marks is so important.
Platforms are usually far more reactive to trade mark complaints (when you have a registered TM) since those are easier for platforms to assess.
Copyright claims are generally much harder.
I’m not across the details, but it sounds like what Google has done here is what it’s supposed to do under DMCA - i.e
Take down content on receipt of notice
If the other party contests, the content goes back up
UNLESS the party submitting the complaint litigates within 14 days
Will this be the year of correction? I don't think so. I've actually seen reports of some studios investing more in a smaller number of larger projects. It feels we're near a tipping point of diminishing returns for all but a few of the biggest winners though.
With dev budgets like these, and the ever growing War for Attention, it's no surprise that it's harder than ever to generate a true AAA 'hit', and sustain the studios making those.
For comparison, the production budgets for some of the most expensive films ever made (e.g. Avengers: Endgame and Avatar 2) are reportedly around $350m.
Other reported budgets (take with a grain of salt):
- Genshin Impact - $700m ($100m base game, $200m / year ongoing)
- Cyberpunk 2077 - $441m
- Spider-Man 2 - $315m
- The Last of us 2 - $220m
GTA6 is rumoured to have a budget of $1-2 billion (though some estimate it'll generate $3bn in year 1).
AAA game budgets...
New court filings indicate three Call of Duty games cost between $450m - $700m to develop *each*. That covers initial development costs and post-release content, but not marketing. Those were for games in 2015-2020, meaning latest entries are likely even higher.
I thought exactly the same! One of my fave reveals last night.
Ever heard of a "pay or play" clause? e.g.
"Composer shall receive, on a pay or play basis, the sum of [AMOUNT] as fee for all composing, producing, recording and performance of the Score."
It basically means that you have to pay the other party, even if they never actually provide the services!
"Pay *and* play" clauses are even better - it means you have to pay them, *and* actually deploy their performance in the project.
Again, rarer in games deals, but they'll appear when working with big-name actors, writers, musicians etc.
Aren't contracts fun!
These clauses originate from Hollywood - the idea being that talent should be paid, even if the project is cancelled / they are re-cast, to compensate for the lost opportunity cost in signing up to a project.
These are rarer in games deals, but do exist, especially when dealing with agents.
Ever heard of a "pay or play" clause? e.g.
"Composer shall receive, on a pay or play basis, the sum of [AMOUNT] as fee for all composing, producing, recording and performance of the Score."
It basically means that you have to pay the other party, even if they never actually provide the services!
😂😂
