Securing Entertainment Rights (indy)

[WitchKiller]

Thanks for your time,

A fellow student contacted me recently with the request that I write (literary write) a game that he is developing for XBLA.  From what I was able to glean from the internet and the few MUD developers (only industry insiders I know) I contacted, it seems that I am going to have to immediately forfeit ownership of any created content to Microsoft, before the press kit is sent.

I've worked with entertainment lawyers before as a musician, but so far everyone has been mum when I ask for guidance regarding artist protection within the video game medium.  I've been amazed by the quality insight that many of you offer, and I'd appreciate any intel you guys could provide.


Question, the second:  I'm meeting this developer at the end of the week; are there any BS indicators that I should look out for?  Before I go investing into this project, I want to make sure that he will be able to deliver in the event that MS does send him the XBLA development tools.  I have a high 'sense motive' skill, but no points in 'knowledge programming.'

Thanks in advance, Esposito has a song for F13.

[Margalis]

If you create XBLA content MS will get the some form of distribution rights but you should retain all the IP ownership. I'm not sure about XNA but it should be similar.

An XBox dev kit is fairly expensive and getting one isn't too easy, if the guy can get his hands on a full fledged dev kit that's a pretty good indication in itself that he's serious. If you're talking XNA then who knows. If he gets a dev kit he'll also have access to the developer site that will have a bunch of shit including IP information somewhere on it.

[WitchKiller]

Thanks Margalis,

I'll do some research on the developer kits, and try to find out where this guy is on a technical level.  I'm not interested in money with this project; I'm just trying to make sure that I retain ownership of my own creations.  I'm considering writing everything out as a story, and then registering a copyright of the work.

Anyway, thanks for the reply.

[Stephen Zepp]

You are definitely going to want to find out more about what he's talking about before you can make a good decision.

Currently, there are two primary publishing paths for XBLive Arcade: the original publishing path (get a program slot, dev kit, XDK, all done well after pitch/negotiation/contract signed), or using XNA (C#) and the Creators Club to push to XBLive Arcade via their new indie/community game system.

It's not true that you automatically give up all your rights to your IP simply because you start pitching a game to MS, or even while negotiating, although you will wind up signing a standard NDA and general release (this is done because during your pitch, they very well may realize they already have a similar game under development).

MS does however extremely aggressively negotiate contracts to their advantage, and tend to really like forcing a small game team to sign a very unbalanced agreement. If you are going the first route, you better for damn sure guarantee that your guy has an excellent game lawyer (game contracts are definitely unique enough that a standard contract lawyer with no game experience could get you painted into a corner).

To give two references for how aggressive MS can be for XBLive, when GarageGames negotiated to publish Marble Blast Ultra, one of the clauses was that we owned the IP, but we were not allowed to publish the game under any additional channels for a full year...that's not so bad, but we also ran in to an issue where we wanted to push a free update (bug fixes plus a small level pack), and Microsoft refused to allow it to be distributed free (they wanted to charge for the levels). We held to our guns--and so did they. The update was finally pushed out just a month and a half ago, almost 2 years after the game was first published.

In the second example, Penny Arcade/Hothead games originally planned on distributing On the Rain-slick on simultaneous alternate platforms...but somehow they incorrectly negotiated the contract and MS was able to refuse them permission.

For the record I'm not making any judgments here, I'm just pointing out that it's a hard nosed business and you better make sure you know what you are doing in the contracting sense.