8. Prototypes and Intellectual Property

Don’t worry about people stealing your ideas.

If your ideas are any good, you’ll have to ram them down people’s throats.

—HOWARD AIKEN

Many designers are reluctant to share their work with others because they are afraid that someone will take their idea, make a fortune on it, and leave them out in the cold. These designers take one of two paths: Either they sit on their idea and try to develop it themselves, with no testing or help, and the idea never becomes marketable, or they spend time and money investing in documents like nondisclosure agreements (NDAs).

Do I Need an NDA?

Here’s a fictitious conversation with a student, some variation of which I have had dozens of times, if you will allow me to play the role of Socrates:

STUDENT: I have a great game idea, but I need to figure out how to get an NDA for it before I can talk about it with you.

ME: Hang on a second. Do you own a bicycle?

STUDENT (CONFUSED): Yes.

ME: How do you lock it up when you take it places?

STUDENT: Oh, I have a little $10 cable lock I bought at Walmart.

ME: Really? You know a simple set of bolt cutters would slice right through that. You can buy a steel u-lock from Kryptonite for $120 that is pretty much impervious to bolt cutters and hacksaws.

STUDENT (LAUGHING): Yeah, but my bike is probably not even worth $120.

ME: You don’t care if it gets stolen?

STUDENT: No, I do. I’ve had that bike since, like, middle school. It’s got sentimental value.

ME: If you had a thousand-dollar bike, though, you would think about getting a better lock?

STUDENT: Of course. More people would probably want to steal that rather than my beat-up bike.

ME: So the important factor in how much you will spend to protect something is how much it is actually worth?

STUDENT: Yeah....

The student’s heart is in the right place. He has an idea with sentimental value, so he does not want to see it stolen. Yet he admits that people will go out of their way to steal only something that has actual worth. An undeveloped idea has little worth beyond that to its creator. The hard work lies in developing the idea and the eventual production and marketing of what comes from it. It’s ridiculous to want to have an NDA for an undeveloped idea. It is like buying a $120 lock for a $50 bike.

Sometimes students who do not listen take the argument further:

STUDENT: You don’t seem to understand. That’s all well and good for the other guys, but my idea is amazing.

ME: I believe you! Let me talk about something unrelated first that definitely will not violate any potential NDA.

STUDENT (WEARILY): OK....

ME: When my grandmother died, she left me a bunch of her old books because she knew I loved to read. She had a lot of books, though, and I just didn’t have the room to keep them all just for sentimental reasons. I had to either donate or sell some of them. If I wanted to sell them, how would I figure out a price?

STUDENT: You could go onto eBay or Half.com or Amazon and find out what the books are selling for there.

ME: What if they didn’t have the same exact edition of the book I had listed there?

STUDENT: Well, I guess you could guess by seeing what similar books in similar conditions go for.

ME: OK, so if I look at what similar things go for in a marketplace, then I should have an idea of what that is worth?

STUDENT: Makes sense.

ME: Should I be able to do something similar if I wanted to sell a business or a piece of art, or something like that?

STUDENT: Sure.

ME: So earlier I said that the amount you should spend to protect your idea is dependent on how much it is worth. Now we’ve determined that we can figure out how much something is worth by how much it goes for on the market. How much do ideas similar to yours go for on the market?

STUDENT: I... don’t know.

ME: There are thousands of indies making games. Pretty much anything that has value is traded on eBay or Craigslist or similar sites. You can buy art assets on TurboSquid. You can hire coders on Elance. Where do you go to buy game ideas?

STUDENT: I don’t know.

ME: I don’t think such a place exists. I’ve never seen a listing for game ideas on Craigslist or eBay or anywhere, honestly. If an item has value proportional to how much someone is willing to pay for it, then if you can’t find a place to buy or sell it, how much value can it have?

STUDENT: Well, it has value to me. It’s a brilliant idea.

ME: Right! Your idea is more valuable to you than to anyone else. That’s why others are not willing to pay for it. That means it makes the most sense for you to be the one to develop that idea further. Eventually, when you have a game, you‘ll have a vehicle for selling that idea to other people. It will have value to others at that point. But right now, it has value only for you.

Ideas and Value

Signing an NDA is not in a publisher’s, designer’s, or professor’s best interest. This is the same reason that many publishers will not even look at unsolicited ideas. Imagine a publisher that has a big pirate game in the works. An unsolicited idea comes in from a stranger who pitches them a similar pirate game. Because of the low-hanging fruit problem from Chapter 2, it is unlikely that you are the first to have any particular idea. The publisher looks at the idea, realizes it is similar to what they are already working on, and politely declines. Then the publisher comes out with the pirate game and the designer thinks that the publisher stole his idea and made it without him! As a professor, I see many game ideas. I also have about a dozen games that are in some stage or another of development from idea-in-a-Google-doc to production testing. If I sign an NDA with you, and then it turns out that your idea is something that I am already working on, I have to throw out that idea to alleviate the risk of a lawsuit. It is not worth it, so I don’t sign NDAs to cover undeveloped ideas. Game designers have far more ideas than they have time to implement; there is never a reason to steal one. There is no reason to use an expensive lock on them.

Once a game is created, it certainly has value. If you are working with a team, it makes sense to negotiate what the future ownership rights of the project will be once it is finished. This can take the form of a team charter or a partnership agreement. This, however, is not protecting the idea; instead, it is protecting the time investment that the team members will make in implementing the idea.

Summary

• You should not be fearful about sharing your ideas with others.

• An unimplemented idea gains value when the developer of that idea can test it under real conditions.

• Nondisclosure agreements are important in professional circles when a discussion involves trade secrets that have actual market value.

• It is worth it to spend money on legal protections such as incorporation and contracts only when the entities being protected are worth significantly more than the cost of establishing the protection.

• Many publishers will not receive unsolicited ideas because of the legal issues involved if the publisher is already working on a similar idea.