The proper negotiation of a contract is a process that is too often ignored by developers, especially those eager to get a deal. I suspect that part of the reason for this is that the stereotypical game maker neither likes nor enjoys the process.

The harsh reality is that many, if not most, publishers are so used to developers being passive about the negotiation process that they have become arrogant and unwilling to actually engage in a meaningful negotiation dialog with developers.

Instead, they too often become rigid and inflexible when it comes to their contract negotiations. And I suppose this attitude comes in part from, among others, the following factors:

• An overwhelming financial advantage held by publishers in the relationship
• Publisher risk aversion
• The perception, at least, that there are more developers than deals
• A failure by developers to have or communicate a long term vision for their studio
• A lack of appreciation of the “process” of contract negotiation
• Developer fear, rather than appreciation, of being exploited

These factors are certainly not present in every deal dynamic, nor do they apply to every publisher or developer.

Moreover, with the vast array of innovative approaches to succeeding in the industry, even the traditional developer-publisher model is hardly a standard for the way we do business.

However, there may be some value to just accepting the stereotyping for the moment and proceeding with the discussion to see where it takes us and what we can learn in the process… so, shall we proceed?

Publisher Financial Advantage

Sure, the publisher has the money. And lots of it. And the developer needs the money to make the game and build their studio. What possible leverage can the developer have in a situation like that?

Well if you look at it like that, it may actually make sense to take whatever deal the publisher offers and just “take your beating like a man.” But, I don’t think so.

Step back a little and consider what it is that the publisher sells… games. And what does the developer have that the publisher does not?

A game. And all the money in the world is useless to a publisher if they have no games to sell — unless they want to open up a bank.

Oh yes, they want and need your game. If they didn’t, they would not be talking to you. The old Steve Miller song, “Your Cash Ain’t Nothin’ but Trash” comes to mind.

So, while the developer may desperately need to dollars, the publisher needs the games. I sense the makings of a mutually beneficial business relationship.

Risk Aversion and a Clever Diversion

Publishers, as businesspeople, focus a great deal of attention on risk avoidance. They sometimes even use it as an excuse to convince developers to accept terms in a deal that are, in reality, unnecessary or overreaching.

In a deal with a developer the easiest way for the publisher to minimize risk is to put as much risk as possible on the developer. So, back-end loaded budgets, long payment procedures and the necessity of the publisher owning the IP is standard “policy” for many publishers.

Well, as a professional negotiator, I’ll tell you what I hear when someone says “it’s policy” or “it’s the standard deal in the industry.” I hear nothing.

If the publisher cannot provide a realistic logic-based justification for an adverse contract provision, make them or don’t agree to it. And if the best they can come up with is “reduction of our risk” be extremely skeptical.

I recently ran into a really clever ploy by publishers. In order to overcome the objection to IP assignment for original IP games, instead of demanding the IP ownership in the deal, publishers are now allowing the developers to retain IP ownership until after the game is released.

However, the publisher retains an option to buy out the IP (and in the process the developer’s rights to a back-end royalty in the process) if the game performs above a certain level.

What level, you ask? Well, it is inevitably some time before the advance recoup point when back-end royalties would normally kick in if the game is a hit! You really have to admire their guile.

If the game sucks, the developer can keep the IP. But if the game is a hit, the publisher owns it and the developer gets screwed out of any back-end royalties in the process!

More Developers than Deals

There is certainly a perception that there are more developers and games than there are available deals. There certainly are.

However, that does not apply to the right game at the right time. Each game is in many ways unique and if you are lucky enough to garner the interest of a publisher you can rest assured that they believe that your game will succeed.

It could be unique gameplay, your team’s reputation in the industry or filling the right slot in the publisher’s portfolio strategy. But regardless of why they want your game, once you pass that threshold, you no longer have one of the many games in the marketplace, you have the game that the publisher desires.

And, as I already stated, getting the right games to publish is the whole point of the exercise for the publisher in order to insure their ongoing success.

Long-Term Vision

So, what does having a long-term vision for your studio have to do with your negotiations? Initially, the impression the studio makes on the publisher can make a significant impact on the course of the negotiations.

Conveying a coherent vision can instill a sense of competence in the mind of your contact at the publisher — that the developers are serious-minded about the long term success of their business, not just their current game. This level of respect will usually have a positive impact on the process.

Also, having a long term vision for the studio can impact the sort of deal that will ultimately be acceptable to the studio.

After all, taking a deal that does not provide sufficient revenue for the studio to survive the development process and stay healthy in the post-release period is important, especially if the long term goal is to build a great studio, not just to make a great game — which should be the long-term goal of every studio.

The Negotiation Process

A negotiation for a deal is a process, not an event. Developers too often look at the initial offer as the end, not the beginning, of the process. But think about it. Would you expect the initial offer to be the best deal? Certainly not.

In fact, the initial offer is usually the best deal that the publisher thinks they can get. But it is sure not the best deal the developer can secure. In fact, it is often a bad deal for the studio.

Of course, it is gratifying to get any offer, any offer, to get your game made. And it is usually the result of a long period of effort by the developer to get a deal.

But that alone does not make but it a deal with taking. After all, sometimes the best alternative to a negotiated deal is no deal at all.

Naturally, getting a deal is the point. But some extra time, thought and perseverance can make a significant impact on the result.

And don’t think that you are going to offend the publisher by working them a little. They negotiate deals all the time — much more than developers do. They will generally look at it as an expected course of action.

My initial response to a first offer is to respond with the studio’s best possible deal. After all, the publisher just probably sent the studio the publisher’s dream deal — so a similar response is appropriate.

This is especially true if the publisher’s offer is extremely exploitive of their perceived superior bargaining position. And they may just be in the habit of getting everything that they ask for.

But remember that the initial offer will usually remain there. So, the studio really has nothing to lose by testing the publisher’s resistance in the process and making a counteroffer that includes everything that the developer wants and needs.

And in the process don’t worry too much about what the publisher will ultimately accept. Let them decide how much they are willing to give. That’s their job, not yours.

So if you find yourself holding out on asking for something because you don’t think that the publisher will agree to it, don’t. Let them negotiate their position. You negotiate yours. And if they are in a position to deal, you can rest assure that they are quite good at knowing what they want.

Exploitation

Developers build games and publishers exploit them. That should mean that publishers exploit the games, not that publishers exploit the developers. What every developer should want in a developer-publisher partnership with someone who is really great at exploiting their game.

After all, the commercial exploitation of the game is where the money comes from. And few, if any, developers are really good at exploiting their own work. But then, few, if any publishers are really good at making games. That’s why they keep buying studios.

And it is also may be why so many studios tank after they get purchased by publishers. So long as the negotiation takes this fact into account, it is truly a win-win situation for everyone.

Make a Great Deal for a Great Game

It takes a huge amount of time and effort to make a great game. And it also takes some serious time and effort to make a great deal. And by that I mean a deal where everyone wins, both the publisher and the developer.

So, put the same degree of focus energy and time into the deal they you do into the game and who knows… you may build that great studio in the process.

Til next time, GL & HF!

[© 2008 Thomas H. Buscaglia. All rights reserved.

Graduates of schools that teach game development and design may have a leg up on others trying to break into the video game field… in many cases they created as classwork a game that could stir the interest of a studio or publisher.

But wait! Whose IP is that game anyway — the student’s or the college’s?

At least one leader in the field — Redmond, WA-based DigiPen Institute of Technology, which has produced  multiple award-winning games and the team that made Narbacular Drop and went on to create Portal for Valve — says it’s theirs.

While DigiPen is not alone in this rule, with major schools such as The Guildhall @ SMU also enforcing the rule, the majority of educators and others interviewed for this story took issue with that practice.

“I don’t want to sound hokey, but this is a moral issue,” says Vashon, WA-based Tom Buscaglia, who refers to himself as “The Game Attorney.” “What you’ve got here is an institution that, while it claims to be there to teach and help unsophisticated students, is having them sign over ownership of their work. And that, to me, seems morally reprehensible which, frankly, is what’s driving me to speak out — my moral outrage.”

What is also driving Buscaglia to speak out is that he represents Zach Aikman, president and co-founder of Seattle area-based studio Fishbeat, who is also a Spring 2008 DigiPen grad.

Aikman was one of four students at DigiPen who, for three semesters, developed a music-based shooting game for the PC called Synaesthete that won the best student game award at the 2008 Independent Games Festival, took second place in the 2007 Indie Game Showcase, and was a finalist in the Intel Game Demo Contest.

Synaesthete

While Aikman and his team created the game with no intentions of publishing it — since they were well aware that the school’s policy was that it owned all IP developed there — shortly after their game started winning awards, they began to be approached by publishers who believed the small casual game could easily be digitally distributed and sold for $5 or $10 a pop.

“We knew the school owned the copyright on all the art, the assets, and the code,” recalls Aikman, “but you can’t copyright play mechanics. So, after we graduated, we began talking about taking the game concept and starting from scratch with different code.”

“We decided to incorporate, start a studio, and while we couldn’t sell Synaesthete as it was, we hoped to use it to showcase our talents and try to talk some publishers into getting some funding to create something new.”

What irks Aikman is that, after graduating, he and his team approached DigiPen, hoping it might change its policy and make an exception for the award-winning game, but the school wouldn’t budge.

“They were dead set on not setting a precedent because, if they let us keep the IP, they were afraid other students would want the same. But I believe there’s something wrong with the idea of DigiPen owning games it has no intention of doing anything with, while discouraging people like me who could really make use of our efforts and use it as a springboard to a career.”

“It’s like going to an art school and creating a painting while you’re there. Does the school own the art that took so much of your time and effort? I don’t see why the same thing shouldn’t apply to games.”

In another controversial IP ownership-related event in 2007, Slamdance Games Festival finalist Toblo withdrew its game from the event “on moral grounds” due to the removal of Super Columbine Massacre RPG from Slamdance’s line-up. But DigiPen “overwrote our decision and readmitted Toblo to the Slamdance Festival”, according to Toblo’s creators, with its ability to do so technically due to its IP ownership of the game.

However, Claude Comair begs to differ. Comair, who founded the privately owned DigiPen in 1988, is its president and one of its owners. He is also a co-founder of the Nintendo Software Technology Corp., a division of Nintendo of America.

“Our policy, which has been our policy since day one and which is laid out in our student agreement, is very clear — everything that is done within the school and presented as homework or as a product to be judged by a teacher ends up being the property of the school. IP, code, artwork, everything,” says Comair.

“And, as a matter of fact, in my opening speech, I tell students that if there is something dear to them, they should not present it as homework.”

That policy, Comair explains, isn’t a casual one and, he feels, it has helped the school avoid many problems, especially misunderstandings between DigiPen and the games industry.

“We are not here to compete with the games industry,” he says. “We are not here for people to come and make a game in a less-expensive manner utilizing equipment and software that has student licenses.”

“Just as importantly, we are not equipped to properly firewall our projects in the sense that we really don’t know legally speaking how many or which students created which games. We don’t know whether they received input from other students who have not been credited.”

“These are just a few of the reasons why we have this policy,” he adds, “but the bottom line is that DigiPen has never sold any of its students’ games nor do we intend to. Nor have we made any exceptions for students who tried to convince us to do so. They have come to us with so many very creative arguments that I recently had to say to them ‘Please don’t come anymore. I have your best interests at heart and I want you to go find good jobs after you graduate. But I simply cannot make exceptions.’”

Similar policies exist in the private sector, of course, and developers are often asked to sign employment contracts saying that “essentially, anything that comes out of your brain — whether at work or at home — belongs to the studio,” says Jason Della Rocca, executive director at the International Game Developers Association (IGDA).

In other words, he explains, some game companies insist that they own, say, the assets produced by an artist during work hours and the artwork that they paint in the evenings at home.

“Some studios are particularly onerous in that regard,” he says, “and that is something the IGDA is working to change. But that’s a very different situation from this academic context since presumably design schools have no interest in monetizing students’ projects the way a studio might.”

Della Rocca admits he was unaware of such policies at DigiPen or any other game school. But Brenda Brathwaite is well aware of the situation. Brathwaite is an independent game designer, chair of the Interactive Design and Game Development Department at the Savannah College of Art and Design, and a member of the IGDA board of directors.

“I can tell you that I know students who have been heavily demoralized by that policy,” she recalls. “I don’t know enough about why other schools have the policies that they have, but I am damn glad we have the policy that we have — which is that our students have 100% rights to their work. That’s a policy that’s always been very attractive to me and it’s one of the reasons I’m teaching here.”

Similarly, Susan Gold says that she would never associate with a school that didn’t allow students to own their own work — of which DigiPen is just one of a number worldwide.

Gold, who believes this is an important issue but not one that has been broached by the IGDA, is the chair of the IGDA’s Education SIG, as well as the international development manager of the Masters of Digital Media Program at the Centre For Digital Media’s Great Northern Way Campus in Vancouver, Canada.

“My personal view is that students ought to retain the rights to their work,” she says. “At schools that don’t have that policy, typically students know that before they enter the school so really no one should be taken by surprise. I just think that it’s a shame that the policy exists. I don’t believe work should belong to anyone but its creators.”

Asked whether she expects the IGDA to tackle that issue, Gold replies that “university policy is usually very hard to change.”

However, she expressed curiosity about what other members of the IGDA’s Education SIG feel about the topic and she posed the question online to her listserv roster which, she says, includes “educators around the world.”

Here are a half-dozen typical responses from the 30-plus she received:

• “Here, in the UK, student projects are the copyright of the student unless they are working for a company and being sponsored by them directly on the project.”
• “At Carnegie Mellon University’s Entertainment Technology Center where I am a grad student, the students retain all of their IP. My project for the past two semesters has been a game and we are currently seeking publishers with the good graces and help of all the faculty here.”
• “Students, both undergrad and grad, retain all their IP for projects here at the University of Technology, Sydney, Australia.”
• “I’m aware that some schools have the policy of retaining the rights to student IP and I even blogged about it recently. I consider the practice short-sighted and irresponsible and I encourage prospective students to be aware of this issue when they’re applying to school.”
• “Here, in Australia, universities generally have an IP policy where the work that students produce for their courses belongs to the student, which is fair enough, I say, since the students don’t work for us; in fact, they are paying us money. The issue can get complicated, however. There can be ongoing projects that last several semesters with different student teams, projects with significant input by the academics, and projects built on frameworks developed at the institute.”
• “I suggest that the IGDA come up with a statement of good practices, such as ‘IGDA recommends that students retain the IP of their coursework and projects as a means of both motivating them to create publishable work and being able to present a portfolio to future employers.’ Such a statement would make it clear that institutions retaining IP are not acting in the best interests of their students.”

While it wasn’t clear whether the IGDA’s Education SIG would take up the issue, DigiPen’s Comair says that a policy change is not out of the question. “Students come to DIT to learn and get the most out of their education, not to ship a game they created at school for profit,” he says.

“We are a school, not a production house, and therefore our goal is for the students to gain the knowledge and experience they need to be successful in the field. We may lose students based on our IP policy, but this is not as important to me as is maintaining the quality of the education.

“I am not saying that we will not change in the future,” he adds. “But, in order to do that, we need to talk to the industry to see what they feel would be best. Our program advisory committee is made up of the best of the best companies in the world. So far,” he says, “they are very happy with our policy.”

After this content pack, I already have my second content pack laid out, so I’ll just jump right into my next one. My goal is to get some kind of revenue streams in place, even if it isn’t much, so that I can start my indie game studio proper. I’m sure that I won’t be able to find too many developers who will work for free, so I need to be able to offer them something…anything.

We’ll see how things play out. I emailed Garage Games yesterday, requesting more information in regards to content pack publishing. I haven’t heard back yet, but I’m sure they are very busy, so it may take a little while to get a reply.

If I can’t get it published through them, well… I can sell it myself and chaulk it up as a learning experience… plus I get to keep my developer’s abilities sharp.

I have the incredible fortune of being paid to design games. I consider this a privilege, the result of some luck, but at the same time, it’s something I worked for years at achieving. I wanted to be a game designer from a very young age, and I built up the experience and knowledge that eventually convinced people to hire me to do this.

As someone who worked so hard to break into the industry, I have a somewhat stronger opinion than most about the quality of game designers that get in. I feel that every designer should pay their dues before they’re allowed anywhere near game design, and that they should be supremely qualified as students of gaming! Sadly the demand for designers has created a situation in the industry where many people getting into design positions don’t fit the bill.

Game design is one of the most tricky and contentious positions in the game industry. No two companies I have worked with have treated the position of design in the same way. Some designers have producer-type duties/powers, others treat them like artists, and yet others don’t have design positions at all but instead assign the job to a producer, coder or artist.

The only thing that everyone seems to agree on is that you need game designers. The problem is, however, that everyone is a game designer, or thinks they are. What I mean by that is everyone can come up with game design ideas, ideas are a dime a dozen.

Game Designers Suffer From a Credibility Problem

The art of game design is getting the right combination of ideas for a game, communicating them effectively to the team, and executing those ideas through the cycle of development (from conception, to prototyping, to modification, and to the final implementation/cut stage).

The problem is that game designers suffer from a credibility problem. One of the causes of this is the lack of professional accreditation for game design. I realize there are schools now that supposedly “teach” game design, and you can even get a degree in it now, but most developers laugh at the idea of a 23-year-old graduate in game design having any clue about designing a computer game.

The best school for game design remains industry time, at least the years development experience and, at the very minimum, one shipped title. Since most designers working in the industry don’t have a degree in design, many of your peers are reluctant to treat you as an authority in your field, especially since anyone and their dog can come up with game ideas.

There is constant skepticism from colleagues holding computer science degrees and art diplomas about your qualification to make critical decisions about the game. Producers are also prone to “suggest” designs because they have managerial authority, and this makes them sometimes believe that they are better qualified to make design decisions than you are.

Another obstacle to the credibility of Game Designers is that the field attracts a good degree of charlatanry. The very nature of game design work (mostly ideas driven, no professional qualification necessary) attracts the kind of people who think they can BS their way into the job. Too many of them succeed and thus give designers an even worse name.

For development studios, this can have a fatal effect, and in an effort to improve the reputation of my profession among my peers and help developers hire the right people, I am providing some advice on how to properly interview for game design positions.

Obviously, if the candidate has dozens of shipped AAA titles under their belt and has a proven record, you don’t really need this list. Any candidate who has less than three years in the industry is more difficult to assess, so hopefully these suggestions will help pick the right people.

Ten Ways to Spot a Real Game Designer

The Resume:

1) Look for signs of a deep interest in gaming. The resume should indicate gaming as a way of life, not just a job. Modding experience is especially a key sign. Anyone who wants to be a game designer has an extensive record of making games in their spare time, for free: making levels for favourite games, modding, writing game material, creating board games, RPG background, story writing, etc.

Game designers must be gaming fanatics, not just playing them, but making them in multiple mediums. Beware any game designer that doesn’t play games every spare second of their time or have an extensive history of game making. Look for a long history of gaming interest, not just a sudden career change decision.

Some developers decide that they are tired of being producer/artist/programmer and they want to go into game design. Although experienced, they may not be suitable for design work despite this. Candidates that have a knack for game design usually have demonstrated a passion for game mechanics stretching from early adulthood.

2) Look for a wide variety in gaming taste: A real designer should have a wide interest in games, not just a single format. Look for signs of this wider interest in their hobbies, or ask them what kinds of games they play.

Ask them to describe what they like about each kind of gaming. They should be able to do this at length. I am talking cross platform, boardgames, RPGs, and the classics: cards, chess, backgammon, etc. Good designers borrow the best ideas from all mediums.

3) If the resume lists design credit on shipped games, ask them to describe in detail what their design contribution was to those games. A real designer should be able to go into extensive detail on this, most designers are proud of the work. If the response is vague, you are probably talking to a charlatan.

The Interview:

If you follow these steps in an interview process, you should be able to spot the bull from the real deal:

1) Any designer should be able to describe mechanics in a way that is understandable. If you ask the designer candidate to come up with a sample feature for your game, ask them to describe how the feature will work mechanically. A real designer can describe mathematically and mechanically how a feature will function and be implemented with other game systems, down to every detail.

For example, if a designer talks about how the AI will be able to react to the player’s actions, they should be able to detail exactly how that will work: will it be based on how many “bad behavior” points the player has accumulated, will it depend on triggers set in the dialogue system that will play specific responses, will it be based on a proximity system that the AI checks when the player is within range, assessing the player’s reputation points, shown weapons, clothing, etc.

If a candidate cannot describe probabilities, mathematics, or outline game systems supporting a feature, then they probably are not the real deal.

2) A game designer should be able to explain clearly any of their design ideas. If they cannot make you understand how their idea works, then you should pass. All true designers are able to explain how their ideas work and play to any audience.

That is one of the biggest jobs of game design, translating the feature to the team in a manner that they can understand it and integrate it from their point of view: for coders its codese, for artists its artese, sound language, producer talk, and marketing speak.

3) Making the game is also selling the game. A designer must be able to communicate why the game is fun to you. They have to be able to do this in under a minute and leave you with the unmistakable feeling that they are right. Any designer who doesn’t understand that you are selling it the minute you start making a game, is not a designer.

A designer has to sell to all sections of development, not just the management and marketing departments. Designers have to tell everyone working on the game how fun it’s going to be without a playable version for many months to come.

They are the cheerleaders for the project early on until there is something to show. In an interview, ask the potential candidate to pitch you a favorite game concepts they would like to work on, and if you are not convinced it’s fun, them maybe they are not right for you.

4) A true game designer should be able to describe in detail what they like/dislike about a game. Ask them to talk about their favorite and least favorite games. Ask them to explain why they like/dislike them.

Lackluster opinion in this area is a Bad Sign. So is an answer that amounts to them not liking the color of the interface or the names of some of the characters. They should be able to provide clear and solid reasons for their opinion.

5) Wide areas of interest: A real game designer is inspired by the world around them: books, news events, music, history, movies, art, etc. Depending on the type of game you are interviewing for, this may be one of the most critical questions you can ask.

Ask the candidate to talk about their personal interests, what kind of books they read, movies they watched, any other personal interest them may have. A real designer should have extensive and wide interests, bringing those interests to bear in their design. One question I ask is what their favorite movie is and why. The answer can tell you a lot about the kind of designer they are. A short answer is usually a Bad Sign.

6) Attitude: Beware the Ideas Man. Some people think game design is just about coming up with bright ideas. They fancy themselves the smartest person in the room, therefore employers should be begging to hire them so they can get their hands on their wonderful ideas, which naturally will make millions. This attitude is fairly easy to spot. Stay away!

Another type to stay away from is the Industry Fanboy. A fanboy is someone who is intimately aware of the debates and major conventions of gaming, knows all the top games and the buzz about them, but doesn’t understand game design or have anything original to contribute. They rely on the game press and popular opinion for their understanding of games, basically copying what other people have said and done. They known the canon, but cannot elaborate on it or expand on it themselves.

Some may think this is not such a bad thing, so as an illustration consider someone who has learned a guitar piece by heart: they can play it perfectly, note for note, but if you ask them to interpret the piece by adding a blues feel to it or a jazzy tone, they cannot comply. They known the piece, but they don’t know much about music. Designers can be like that.

Listen to the candidate talk about games and the gaming industry — if a lot of it sounds familiar, if it sounds straight off the pages of the game press, or if the words are not their own, you are probably dealing with a fanboy.

7) No design survives first contact with code: Ask them to describe an example of a feature change/cut and how they adapted to it. If they worked on a game, they should be able to describe at least one feature in the original design that was cut (for whatever reason), and describe why they chose that feature and how it impacted the rest of the game.

Make sure they go into detail on how the cut impacted other gameplay features, as well as how they took that into account. A real designer should be able to recall in detail the circumstances surrounding such traumatic (but inevitable) events. If they sound like they didn’t care about the feature in the first place, or if don’t have a feature cut story, this could be a bad sign.

Conclusion

Note that none of these 10 points on their own are an indication that the candidate is not suitable. But if you sense that the person in front of you checked off a good number of these warning signs, you might want to reconsider giving them a position on your team.

Of course, even if your candidate checked positive on all of them, there is no guarantee that the person will work out for your project or your culture. There are many factors that make someone a good employee that are beyond the scope of this article, but at least you may have better confidence that they are actually real game designers. Happy hiring.