In the video game industry, there are a lot of myths regarding publishing contracts. In our experience as video game lawyers who negotiate publishing agreements every week, we believe it is important to debunk these myths.
Myth 1: The publishing deal is not negotiable
Some publishers claim that their template agreement is not-negotiable. We can safely say that this statement is false.
It is important for a developer to realise their worth. While we do get that a developer is often flattered by the fact that a publisher is interested in their game, a developer should never forget that their game is a commercial business opportunity for a publisher as well. And if a publisher sees a reason to actually sign a great game which is commercially promising, this also means that the publisher has an interest to negotiate a mutually beneficial deal. No reasonably acting publisher will be stubborn and let a great opportunity walk away.
A similar stance of some publishers is that they never negotiate a certain clause. This is also a reason why having an experienced video game lawyer is important. Most video game lawyers have negotiated more than once with a certain publisher, which means that they can use their prior experience in assessing whether this is actually the case.
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Myth 2: The publisher will be angry in case I do not accept the terms
Most publishers actually believe it is a red flag when an indie game developer signs an agreement without taking it into consideration. A good publisher prefers a developer which takes the relationship seriously. In case a developer signs the agreement without properly considering it, a publisher might assume that the developer deals with similar agreements in the same way. That could mean that a developer actually did not properly protect their intellectual property rights, which is very unfavourable for a publisher.
For some publishers we represent, we have even included a few easter eggs in their contract. In the event a developer signs the agreement without hesitation, the publisher then asks whether those easter eggs were actually discovered. If that is not the case, the publisher even requests to thoroughly read the contract.
Some publishers even pay a developer an amount to have the contract reviewed by a lawyer. It is quite rare, but they exist.
In the case a developer is actually afraid to damage the relationship with their prospective publisher, that might actually be a good reason to engage a video game lawyer. In this case, the developer can focus on maintaining the relationship with the publisher, while the lawyer raises the important points in the contract negotiation.
Myth 3: Any changes will have to be approved by the management and that will slow things down
While negotiating a (good) agreement takes time, it is important for a developer to not be afraid to raise any concerns. In our experience, it is very important to iron out any assumptions. Any time spent on negotiating an agreement often leads to a more efficient collaboration after the signature. After all, since the collaboration has been clearly discussed, both parties know what’s expected and what they need to do.