One of the main responsibilities of a video game publisher is not only to fund and release a game but also to market it effectively. Some developers assume that a publisher will always do their best to promote the game, since they also benefit financially from its succes. While that assumption is partly true, relying on it can be risky.
A publisher typically manages a portfolio of games. Marketing resources—both time and money—are typically allowed to whichever game is performing best at a given time. For example, if a publisher has two launches in the same quarter, they may allocate more resources to the game with a better return on investment—even if that leaves your game underpromoted.
By including clear marketing obligations in a publishing agreement, developers can ensure that the publisher remains accountable. In some cases, failure to meet marketing commitments can even be a valid ground for termination of the contract, allowing the developer to seek a new publisher or other solutions.
This article outlines the most common types of marketing obligations found in publishing agreements and how publishers can review them effectively.
The efforts obligation
An efforts obligation requires the publisher to actively market the game according to a defined level of effort. The two most common formulations are “commercially reasonable efforts” and “best efforts.”
This type of clause does not guarantee any specific outcome (such as a minimum number of sales). Instead, it sets a standard of dilligence—the publisher must apply a certain standard of effort when marketing the game.
Example of an effort obligation in a video game publishing agreement
Below is an example of an effort obligation in a video game publishing agreement which we have seen in practice, so that you can recognize a similar clause in your own draft:
“Publisher will use best efforts to maximize the revenue potential of the Game for the mutual benefit of Developer and Publisher”
While short, this type of clause can carry weight and provides at least a reference point if the developer ever feels their game is being neglected.
Minimum marketing spend
A minimum marketing spend clause requires the publisher to allocate at least a defined amount of money toward promoting the game.
At first glance, this seems like a strong protection for the developer. However, the amount alone doesn’t guarantee sufficient exposure: it’s equally important to clarify how the money will be spent. Without clear definitions, the publisher could count internal expenses (like staff salaries) toward the total without actually investing in external promotion.
Generally, only out-of-pocket expenses, such as paid ads, event fees, trailers, should qualify toward the minimum spend.
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Example of a minimum marketing spend in a video game publishing agreement
Below is an example of a minimum marketing spend in a video game publishing agreement which we have seen in practice, so that you can recognize a similar clause in your own draft:
“Publisher shall spend no less than €50,000 in direct, out-of-pocket marketing expenses for the Game during the first twelve (12) months following its commercial release. Marketing expenditures shall include paid advertising, promotional campaigns, event participation, and third-party service providers, but shall not include Publisher’s employee salaries or overhead costs.”
This example ensures that the money is truly used for marketing the game and not absorbed into general company operations.
Marketing Plan
AA marketing plan clause is a more detailed obligation, requiring the publisher to prepare a written strategy outlining how the game will be promoted.
A typical marketing plan includes:
- A timeline of key marketing beats (e.g., trailer releases, convention showcases, press outreach);
- The marketing channels that will be used (social media, influencer campaigns, streaming events, etc.);
- The intended budget allocation across those activities.
While not every detail can be fixed in advance, having at least a baseline plan ensures that the publisher’s commitments are transparent and measurable.
Example of a marketing plan clause in a publishing agreement
Below is an example of a clause on the marketing plan in a video game publishing agreement which we have seen in practice, so that you can recognize a similar clause in your own draft:
“Within sixty (60) days after execution of this Agreement, Publisher shall prepare and deliver to Developer a written marketing plan for the Game, including anticipated marketing activities, campaign milestones, and budget allocations. Publisher shall consult with Developer in good faith when preparing and executing this plan.”
This ensures both sides collaborate on marketing priorities and keeps communication open throughout the campaign.
General points of attention when negotiating marketing obligations
The points of attention regarding marketing vary between games. However, there are two general aspects which need to be taken into account.
Make sure that marketing obligations are specific, but flexible
In general, it is in the interest of a developer to ensure that the marketing obligations of a publisher are as specific as possible. Additionally, you can also stack the several marketing obligations. For example, the publisher needs to use best efforts to market the video game and also spend a minimum amount on marketing. This layered approach helps ensure real commitment.
At the same time, it’s important that the obligations of marketing are not too rigid. Publishers should retain enough freedom to make tactical decisions that ultimately benefit the game. Ideally, these decisions are made in consultation with the developer.
Include promises made during pitches
Many publishers make bold promises during the pitching phase: for example, claiming close contacts with platform holders or suggesting that they can secure placement in events like Nintendo Direct, PlayStation State of Play, or Wholesome Direct.
If such promises were a key factor in your decision to work with the publisher, they should be explicitly included in the contract. If a publisher hesitates to put them in writing, that’s a red flag and a reason to reassess whether they’re the right partner for your game.
Before you sign: summary and next steps
Marketing obligations are often overlooked, but they can determine whether a game reaches its audience or fades into obscurity. Developers should ensure that publishers commit to specific efforts, a meaningful minimum spend, or a clear marketing plan, while still leaving flexibility to adapt strategies.
Just as importantly, make sure that verbal promises made during pitches are included in the agreement. A strong contract doesn’t just protect you legally, it also ensures your publisher has the same stake in your game’s success that you do.
Next, we’ll look at Intellectual Property Rights, a clause that defines who owns what once the game is complete and how your rights are protected in the long run.