The Legal Video Game Publishing Dictionary

Video game publishing agreements contain a lot of language which might come across as inaccessible to independent game developers, as they often don’t master the ancient language of ‘legalese’.

This page contains an overview of frequently used terms and their definition to help you better digest the publishing agreement. Please be aware that parties to an agreement can include their own definitions in an agreement, which means that (minor) differences and nuances are possible. So always read the contract (and definitions) carefully.

Audit:	An inspection of the (financial) records of the publisher. Audits are typically used when there is a revenue-share model, so the developer can confirm whether royalty payments have been calculated correctly.
Advance payment:	An amount of money that is paid before the services are provided or the goods are delivered (upfront). In video game publishing, this often helps to cover the development costs before the game is ready to be released.
Appendix:	A separate document attached to the main agreement. Appendices usually cover flexible details (like deliverables, payment terms or milestone plans), while the main agreement contains standard clauses. An alternative term for Appendix is Schedule.
Breach (of contract):	When one party fails to comply with one or more clauses of the agreement. A breach can have several consequences in case not remedied (timely), such as the compensation of damages incurred, penalties, or even termination of the agreement.
Confidential Information:	Non-public information that a party wants to keep secret. Examples are unreleased builds, financial data or specific know-how.     Rule of thumb: would it harm the company for this information to become public? Yes? Then it’s often confidential.
Derivative Game:	A sequel, prequel, spin-off, or other new game that is clearly based on an earlier game.
DLC:	This is an abbreviation of downloadable content. It means all additional content for the main game, which is separately downloaded and/or purchased. For example cosmetic items or a new storyline.
Easter Egg:	A hidden feature in a game which usually cannot be found by playing the game normally. It’s like an actual easter egg: you will need to find it and be surprised.
Entire Agreement clause:	A clause in an agreement which declares that this agreement is the complete and full understanding between the parties. It replaces all prior oral or written agreements.   If something promised earlier is not in this final contract, this clause can make that unenforceable.
Exclusivity:	A contractual restriction giving a publisher the sole right to perform certain actions (e.g., publishing the game on specific platforms). Non-exclusive rights allow multiple publishers or distributors to act.   For example, some web games might want to be playable on different websites, so they will make non-exclusive deals with multiple platforms.
Force Majeure:	Unforeseen events outside a contract party’s (reasonable) control that prevent them from fulfilling obligations in the agreement. Examples are natural disasters, internet blackouts, or pandemics.
Gold Master:	The final, completed, release-ready version of the game that’s being developed. This version meets all the requirements that have been agreed upon in the agreement and are imposed by platform holders.
Gold Master Candidate:	The Gold Master version of the developer that is sent to the publisher for testing whether it meets all the requirements. It might still need some bug fixing, but it should otherwise be ready for release.
Guarantee:	A contractual promise that something is true or will be done.   A very common guarantee is that “the game does not infringe upon any intellectual property rights“. This guarantee protects the publisher, as they don’t know exactly how the game is developed and want to avoid legal problems with the IP.   When there is a misrepresentation of a fact or a failure to perform an action that was guaranteed, in most jurisdictions it is not possible to prove it was not your fault or it is not attributable to you. In the end, you guaranteed it.
Indemnification:	An obligation to compensate the other party for damages or third-party claims. For example, a developer may indemnify the publisher against third-party claims of copyright infringement.
Intellectual Property (IP) Rights:	Legal rights protecting creations of the mind, such as software, characters, logos, art, and inventions.   The different intellectual property rights relevant to video games include copyright, trademarks, and patents.
License:	Permission to use intellectual property rights to a game without transferring ownership.   In publishing agreements, the developer will often keep the intellectual property rights to the game.   In order to let the publisher publish and sell the game, they need to get the rights to do this. This is done by granting a license. A license in essence says: “I allow you to do A, B and C with this game, but I remain the owner of the intellectual property rights to the game”.
Milestone:	A stage in development where the game reaches a defined deliverable (e.g., prototype, alpha, beta). Payments are usually tied to achieving milestones.
Milestone Schedule:	The timeline of all milestones, their requirements, and associated payments.
Net Revenue:	Revenue (money) earned from commercializing the game after relevant deductions, such as platform costs, discounts, marketing costs and publishing costs.   Royalties are typically based on Net Revenue.
Non-solicitiation clause:	A clause in an agreement that prohibits trying to poach the clients or employees of the other party. In essence, this means you cannot “steal people” from the other party.
No oral modification clause:	A clause stating that the agreement can only be changed in writing and not orally.
Notice of breach:	A formal written notice informing the other party that they are in breach of contract.
Platform:	The hardware and/or software that a game runs on, providing the necessary environment and infrastructure to play the game. Examples are PC, Nintendo Switch 2, PlayStation, Microsoft Xbox or iOS.
Platform Holder:	The company or person that owns the platform on which the game is hosted.
Port:	The version of a game adapted for a different platform than for which it has been originally developed.   Usually, a game is developed for one platform, for example a mobile game (for phones). When you “port” a game, it will be adapted to fit another platform, for example the mobile game can now also be played on PC. This version of the game is called “a port”.
Porting:	The process of adapting a game originally developed for one platform, like PC or a specific console, to run on a different platform.
Recoup:	The process by which the publisher recovers its investment before sharing revenue with the developer. Often tied to sales revenue until the advance is fully repaid.
Right of first negotiation:	A clause giving the publisher the right to be the first to negotiate for sequels, prequels, or spin-offs. The developer cannot negotiate with third parties until talks with the publisher have concluded.
Right of first refusal	A clause requiring the developer to offer the publisher to publish a sequel, prequel or spin-off on predetermined terms (often the same as in the original publishing agreement).
Right of last refusal:	A clause requiring the developer to offer the current publisher to publish a sequel, prequel or spin-off on the same terms which are offered by another publisher for the same game.
Royalty / Royalties:	Payments which are made by the publisher to the developer and which are based on the sales revenue of the game. Usually the royalties are expressed as a percentage of the Net Revenue.
Schedule:	A separate document attached to the main agreement. Schedules usually cover flexible details (like deliverables, payment terms or milestone plans), while the main agreement contains standard clauses. An alternative term for Schedule is Appendix.
Services Level Agreement (SLA):	A contract that defines expectations for technical support (e.g., bug fixing deadlines, patch response times) and the consequences if those standards aren’t met.
Third Party Software:	Software that is developed by a third party, whethet free or paid. Examples of third-party software are engines (Unity / Unreal Engine / Godot) and middleware (Blender).
Transfer on breach:	A clause stating that if the developer breaches the agreement, ownership of the game’s IP may transfer to the publisher. Publishers justify this as a way to finish and release the game, but it can be very risky for developers.
Warranty:	A promise that the game meets certain conditions (e.g., free from malware, functioning as intended, compliant with platform requirements). If breached, the developer may face penalties or damages.