66 THE GAME PRODUCTION HANDBOOK, 2/E
Although the agreements will be tailored to a specific company, they cover
several main points. This first is to define specific IP ownership issues, such as
which IPs belong to the company and which IPs belong to the employee, and
the second is to collectively transfer all ownership of the designated IPs to the
company. In addition, guidelines can be set for employees who leave before the
project is completed, such as having to fully document their work or agreeing not
to poach other employees from the company. The language can be as restrictive
as the company deems necessary. This type of agreement should be drafted by
an attorney.
Work for Hire
When an external vendor creates something for use in the game, such as music,
art assets, or code, he owns the created assets and is protected by one of the
intellectual property rights discussed earlier in this chapter. This means you do
not have any legal rights to use them in a game, unless you expressively obtain
permission from the vendor to do so. However, this does not mean the vendor
is obligated to grant you exclusive rights; he may want to license these assets to
other game companies as well.
This problem can be avoided if a work for hire agreement is put in place
before any assets are created. This agreement transfers all the rights to the per-
son hiring the vendor, and for all intents and legal purposes, the hiring party is
considered the creator of the work. For example, if you hire a composer under a
work for hire agreement to create music, after the work is completed, you own
all the music rights free and clear. This means you can use the music in other
products you create, or you can license it for use to other parties.
It is important to note that there are only two situations in which a work for
hire can exist. The first situation is where an external vendor is commissioned
to create a completely new work and signs a work for hire agreement before the
starting anything. In addition, the work must fall within one of nine categories
of commissioned work detailed in the Copyright Act: a translation, an instruc-
tional text, a test, answers for a test, an atlas, a contribution to a collective work,
a compilation, supplementary material, or a contribution to a movie or other
audiovisual work. For example, a magazine article could be a work for hire as it
is a contribution to a collective work, but a novel could not be a work for hire,
because it does not fall into any of the previously mentioned categories.
The second work for hire situation involves any work created by employees
that is within their scope of employment. For example, all the code written by a
programmer who is an employee on your development team is work for hire. He
does not own the rights to the work, as the rights are held by the employer. Of
course, this situation can get complicated if working with part-time employees,
and in that case, a lawyer might need to be consulted. For more information on
LEGAL INFORMATION 67
work for hire agreements, please consult the U.S. Copyright’s Office circular
entitled, “Works Made for Hire Under the 1976 Copyright Act,” which is listed
in Appendix C.
Non-Disclosure Agreements (NDA)
As discussed in the section on IPs, game concepts and ideas are not protected
by copyrights and trademarks. This means the developer must protect them as
trade secrets, and a non-disclosure agreement helps do this. Basically, an NDA
states that what you are discussing with another party is to remain a secret, thus
enabling the concepts to be considered trade secrets. If you discuss your con-
cept with someone who hasn’t signed an NDA, the concept loses its trade secret
status and becomes public domain. So if you want to protect your ideas, don’t
discuss them with anyone without having an NDA signed.
The two common types of NDAs are unilateral and mutual. A unilateral
NDA is used when you are discussing your game concept with someone who is
outside of the game industry, such as an independent investor. This protects any
ideas you discuss with them, because they don’t have secrets—you do. A mutual
NDA is used when people in the industry are discussing ideas with each other,
such as when a publisher discusses game concepts with an independent devel-
oper. This protects the information revealed by both parties. In instances like
this, the publisher is likely to provide the NDA.
The catch is, most publishers are reluctant to sign any type of NDA with
external developers. This is because publishers review hundreds of games a year;
there is a risk they might have a game similar to the one being pitched already in
production or the concept stages. You can always ask them, but chances are they
will not sign one. Of course, this creates a dilemma for any developer pitching an
idea, but in all likelihood, if a publisher is not interested in your game, they will
tell you and won’t be interested in copying it.
Development Contracts
Development contracts between a publisher and external developer outline
what responsibilities each party has to the other. These contracts cover all the
issues involved in the developer/publisher relationship, including the financial
terms, elements of the project, asset deliverable and advance payment milestone
schedules, IP ownership, marketing plans, distribution plans, and obligations of
each party.
The financial terms will define exactly what the payment schedule and roy-
alty structure will be. The developer’s advances are usually divided into a series
of payments that are tied to milestone deliverables. The specific milestone con-
tent and deadlines will be detailed in the developer’s obligations section of the
68 THE GAME PRODUCTION HANDBOOK, 2/E
contract. In addition, specific submission and approval guidelines are set forth
for each deliverable.
One of the most important items covered in the contract is the transfer of
IP rights from the developer to the publisher. This means the developer relin-
quishes all rights to the game’s code, characters, textures, story, concepts, and
anything else that go into creating the game. It might also cover any proprietary
tools the developer creates to streamline the game development process, such as
scripting tools, texture editors, or software plug-ins. If the game is based on an
existing license, such as a movie, detailed guidelines of how the developer can
utilize the license are included.
Development contracts also discuss other contingencies, such as who is
responsible for QA testing, localization, publicity, and ancillary rights (such as
movie and television deals). Also, as with employee/consultant agreements, in-
formation is also included on how disputes between the parties will be arbitrated.
The publisher is responsible for finalizing the publishing contract, although the
developer will need an attorney to review it before signing.
End User License Agreements (EULA)
End user license agreements protect the publisher and establish a license agree-
ment between the owner of the IP and the end user. The basic purpose of the
EULA is to eliminate the resale and rental of the game. However, because of
the way console games were originally classified for IP rights, they can be resold
and traded. So that is why you are able to rent console games or buy used cop-
ies at the local game store. With PC games, the EULA can be written in such as
way to make resale illegal. The publisher usually provides a standard EULA for
eligible games.
4.4 LICENSES
Games based on licenses, such as Spider-man™, James Bond™, or the National
Football League™ are becoming more common each year. The allure for pub-
lishers to secure well-known licenses is the ability to build upon an audience
who is already familiar with the brand, which generates higher awareness for
the game and translates into higher sales. For example, it is easier to market
an adventure game based on Harry Potter than to market one featuring an un-
known character and universe. A Harry Potter game immediately means the
game will feature Harry and his friends, wizards, amazing adventures, mythical
creatures, and a host of other magical characters. An unknown character does
not have any immediate associations, so players must be educated on what the
elements are.
LEGAL INFORMATION 69
A producer is not normally involved in the actual processing of securing the
interactive rights to a license; instead, the producer is usually assigned a project
with a specific license already attached. This means the producer must plan for
the impact this has on production, particularly on the design, schedule, and asset
creation.
Depending on how the licensing deal is structured, the licensor may be
minimally involved in the actual game production or be extremely involved in
determining the game design, assets, and features. At a minimum, it is likely the
licensor has approval rights over the general game concept and key assets, since
their main concern is to protect the integrity of the license. For example, if mak-
ing a game based on a Disney cartoon, it is unlikely that the developer would be
allowed to create content that would get an M rating, as these titles are geared
LICENSE APPROVALS
Stuart Roch, Executive Producer
Activision
When thinking of schedule concerns in particular, ample consideration must
be taken on the producer’s part to send approval packs off much sooner than they
would normally feel necessary. When dealing with a movie licensed game, a pro-
ducer needs to factor in the longer turnaround time that is a result of active film
production schedules, especially when the directors are integral to the creative
process.
On Enter the Matrix, Warner Brothers approved many of the assets, but
in most cases they did so for legal reasons rather than creative ones. Since the
Wachowski brothers were so involved with the creation of the game, Warner
Brothers allowed them responsibility for the majority of the creative approvals,
leaving Warner Brothers the time to help us more with the business side of the
game production.
Enter the Matrix was even more unique than other licensed games because
the Wachowski brothers were so supportive of the game from the start, thus, giv-
ing us a near all-access pass to the film production. By having a nontraditional and
completely complementary relationship with the Wachowski Brothers, they opened
doors for us that we wouldn’t have even been able to approach otherwise. Whether
it was working with the primary talent, the costume designer, the visual effects team,
or even just bouncing ideas off the brothers themselves, the personal Wachowski
touch meant we had a closer collaboration with the film production than had ever
attempted up to that time.
70 THE GAME PRODUCTION HANDBOOK, 2/E
toward children; so a game will never involve Mickey Mouse going on a shooting
rampage. These approvals need to be clearly spelled out in the licensing agree-
ment, and the producer must account for these approvals in the schedule. You
don’t want to hold up production on a title because you forget to schedule two
weeks to receive final approval from the licensor on the game concept.
In addition, there may be a bible that clearly spells out what can and cannot
be done with characters and settings based on a license. It might detail what
types of clothing the character wears, what actions he can perform in the game,
what other characters from the universe can appear in the game, and so on. The
producer needs to get this information during pre-production so it can all be ac-
counted for and integrated properly into the game. Overall, the producer must
be proactive about working with licenses, so establishing a good relationship
with your licensing contact is the first step to ensure that approvals, concepts,
and assets are approved in a timely fashion.
Create a schedule for the licensor that shows when assets and builds will be
sent for approval and indicates the deadline for receiving approval so that the
licensor has a better idea of how these approval cycles impact the game’s sched-
ule. If you can be proactive about getting the licensor everything they need, you
are more likely to have a positive working relationship with them.
WORKING WITH A LICENSOR
Jamie Fristrom
Torpex Games
When working with a licensor, time must be added to the production schedule
for receiving approval on all these materials, and the licensors usually will take as
much time as they can. You can have clauses in the contracts that limit how much
time they have to approve something; if you don’t hear something from them by the
deadline, it is “deemed approved,” and you can move on with production.
Sometimes you’ll find yourself working with two licensors: for example, a movie
based on a book or comic. The approval rights will be divvied up between the licen-
sors, or you’ll have to submit everything to both parties.
Your licensor probably will leave actual gameplay mechanics or design docu-
mentation up to you, but they’ll still want to see regular builds of the game so they
can see how things are progressing. There are probably many things you just can’t
do with their character. For example, he might not be allowed to kill anyone, which
affects the game design. This can be challenging, but it sometimes helps you to be
creative and do things that haven’t been done before in games.
..................Content has been hidden....................
You can't read the all page of ebook, please click here login for view all page.