The Road to Not-getting-stiffed-along-the-road-to-being-published

[Crayne]

I got an email yesterday from a wellknown company asking me if I was willing to work with them to get my game SOAP (http://www.crayne.nl/soap.shtml) published.

They are a company of good repute and I don't fear working with them, but I was wondering what sensible things I could do to ensure that in the end no one walks away with a dissatisfied feeling...

Any hints and/or tips from the pros, semi-pros and anyone who has any experience?

Crayne

[S. John Ross]

Never hesitate to request a necessary clause in a contract. If you see something in the proposed agreement that's slightly "off" or missing, ask if they'll slip it in. Odds are really really really good that they mean well and that they'll be happy to make the agreement clearer (or whatever is needed).

A lot of folks that are new in the industry just nod and smile and take what they're given. Game Companies do NOT usually take advantage of such people, but Game Companies ARE sloppy about such things, so I'm not warning you of dire evils, just of little glitches in foresight that can cause headaches down the road. You won't hurt anyone's feelings by making requests, asking lots of questions, etc. They'll be happier if you do. You'll be happier if you do.

Since I don't know the details of your agreement (whether you're selling or licensing, for example) I can't be very specific: just read it carefully and make sure it covers the bases to your satisfaction. Make sure there's no confusion about rights, and make sure the term "Work For Hire" appears nowhere on the contract: "All Rights" is fine if you're selling the game outright, but Work for Hire is NOT fine.

Make sure contingencies are included. If they promise to pay by such-and-such a time, or publish by such-and-such a time, make sure it's clear what happens if they for some reason do not.

When in doubt, license rather than sell, if that option is available at all. And it is, unless they're very odd people :)

[Radical Authority]

Three cheers for you, Crayne!

RA

[Misguided]

Whatever you do, make sure you have a lawyer look over any agreements. Always remember that a lawyer's duty is NOT to draft a document that is fair to all parties. In fact, getting an attorney to do this is often like pulling teeth. It doesn't matter how nice these people you are talking with are or how sincere they may truly be. Ultimately, what matters is what is on paper if a dispute arises.

I have found that attorneys often word things in a very one-sided fashion with the expectation that the counsel for the other party will then correct this. Like Sjohn said, do not hesitate to ask for clarification or for changes, that is part of the process. Make sure YOU understand everything, not just your lawyer. If you don't know what a phrase means, ASK!

I'd also suggest talking to other people who have licensed or sold their products to other companies and find out what is equitable. I certainly can't advise you there.

Good luck.

[Jack]

In fact, you can get a generic contract form from various reference books and do this yourself. Lawyers aren't usually needed for a contract and are expensive... nor its fancy legal language. required. Just make sure any contract says all it needs to say. Don't be afraid to be picky about important details. If a compnay hands you a contract, don;t be afraid to ask for clarifications and further explanation of complex clauses. If they won't do this, don't work with them, such attitudes create unnecessary confusion and need for legal intervention. Contract s in essence just require a clear offer and acceptanceand consideration for both sides

This is a contract:

(Hey I want to publish your game for X percentage of the profits, We'll print X copies, you'll get X copies, You'll keep X rights, and we will both be required to perform X to acheive these ends Fill in the blanks, clarify any points that are possibly temporally or financially vague and move on to both signing and performing the contract)

That's it, no magic. Too many people think contracts have to be these magical things that require lawyers and fancy terms like "party in the first part". They don't, a court will keep you from being ripped off if you have a clear agreement that has consideration for both parties as long as you hold up you end. Any lawyer worth his salt will tell a company that...unless they want to legally muscle you with hgih priced attorneys..but that's unlike to happen in the gaming industry.

Also, The most important thing is to be clear and make sure both sides are thinking the contract terms mean the same thing. Fancy language mucks with this.

(You can tell I'm not in civil law, can't you? I keep telling people not to spend money on lawyers unless they have to.)

[Misguided]

We can agree to disagree, but I think that advice is dangerous. The technical language does muck things up for people who don't understand it (are lawyers). Unfortunately, not using such language and conventions may contribute to incompleteness, vagueness, or illegality, which isn't good.

But hey, I'm no attorney, and this sure isn't legal advice.

[Jack]

Originally posted by Misguided
We can agree to disagree, but I think that advice is dangerous. The technical language does muck things up for people who don't understand it (are lawyers). Unfortunately, not using such language and conventions may contribute to incompleteness, vagueness, or illegality, which isn't good.

But hey, I'm no attorney, and this sure isn't legal advice.

I am lawyer and that's where the advice comes from. The law is alot more protective of people's contracts and bargains than people think. if you email me saying "I'll sell give you 500 dollars at the end of a year if you quite smoking for that year because I can't stand it that you smoke." and I accept....you'd better have the 500 bucks....that's a contract. You offered, I accepted, I gave up my right to smoke in exchange for the money you offered and received something in return (the knowledge that at least one person out there isn't blwoing smoke into the air). That's a contract. You technically wouldn't even have to write it, you could just say it. Can a really slick lawyer get out that? Maybe, cept courts want to enforce a contract in cases where a contract seems to exist. (And I can point to cases that upheld that agreement)

This isn't an invitation to get sloppy and use baby talk.... but let me tell you something my first year first semester law school Torts professor once told me....
"Said" means "the"

"Upon entering into this agreement the party in the first part and the party in the second part agree to said terms of section 4 of this document."
Translation:

"When you two sign this contract you are bound to the terms in section 4."

Now some courts like this stuff. But you're not writing legal briefs, you making a contract between two layman.

And another tidbit. If you both don't agree to the same things...its not a contract. So if I send you a technical contract that leads you to believe you have right X and I think you have right y...a court might just say "This thing has no agreement...can't have a contract w/o agreement..this is void." Now this doesn't help you if you just don't read the thing carefully, but an unnecessarily complex document can lead to mistakes that courts may feel muddy the legal waters enough to deny the contract.

Course it would al be easier if we went back to seals and signet rings..then the act of signing and approving the contract would be ritualized enough to insure that people knew they had better understand everything due to gravity of the methods of the contract. But that's what it is. You can a binding contract in words, on paper, or even in needlepoint. Its really hard to rip people off if the other person is willing to make a fuss and keep their eyes out for things that look fishy. You can hire a lawyer to do that for you, but with a bit of work you can save the money and do it yourself.

Course a legal clerk might be able to analyze a whole contract in an hour for maybe 40-80 bucks (maybe less, and it can always cost more especially when you consider legal research fees and other costs)...and maybe its worth that to you for the peace of mind (I'd say it probably is in most cases). But a complex issue requiring negotiation might take hours of the actual attorney's time, at well over 80 an hour in many cases. Now, if you can get access to a non-profit legal aide organization that go for it, but you can do such things yourself or with a bit of assitance. Its really up to you. But lawyers are rarely cheap and it is rare that we can give free work (free advice maybe, but free work, nope).

[Jack]

Heh....caught a few typos. But anyway...

I do concede legal terminology does have one use, both sides often know what they mean and their definitions are usually well understood (sorta, but that's another story). But if both sides don't, then they are useless. I can't stand most "legalese" and I read it all the time. And many contracts are not made by lawyers but people who think they can make a contract "as good as a lawyer", or by lawyers using generic contract forms, or by people who want to confuse you (be they lawyers, or companies, or whatever). Its okay to say "hey can we re-word this to just say 'I agree to pay X' instead of 'The party in the second part agrees to furnish the party in the first part with monetary compensation in the amount of X'?" or "In English that means?" when dealing with something overly complex. Also, in most cases a close reading will reveal the meaning to non-trained eyes.

So hey, go and get lawyers. Pay em..please. But sometimes its okay to do it yourself, especially when you're a poor game designer.

[Robert A. Rodger]

Thanks for the advice, Jack. To add from my personal experience, in order to make a non-disclosure agreement I looked up a few forms from the web and learned a "lay-man's crash course" on contracts. I gutted a couple form documents I found and put in my own terms in clear language. Then I sent it over to my brother-in-law who just happens to be a contract lawyer for the State of New York. He looked it over and said it seemed perfectly clear and fine and was serviceable.

I guess my point is, that with a few hours research and a writer's sensibilities (I've been effectively doing techincal writing for the game books, right?) I was even able to make a contract which a lawyer later agreed met my needs and the law.

Which is all to say, if I can do it it can't be that hard.

But then again, I was the one drafting it, so I knew what it all meant. Let me echo that if there's anything unclear get answers, or better yet, get it reworded. After all, if it says X, and you're told X means Y... well, it still says X.