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All of us started in this industry with passion. That isn't to say we don't still have it, but those of us with experience usually carry quite a few battle tales under their belt. Crunch. Unrealistic expectations. Disagreements. Greed. Wasted work. They all take their toll and shove out those who wish for greener pastures or harden those who trudge on. One of these giant beasts is called Legal Issues, or LI for short. LI is tricky. It can strike when you least expect it and cause incalculable damage. More specifically, legal hassles can cause months of delay or even get an entire project cancelled, or sometimes even worse, not started in the first place. It's not as though people become lawyers because they hate the law. I've read Grisham, I know there's a light side to the force there somewhere. But here are a few instances that still flabbergast me, all of which that took place in the legal arena of doom. All references are of course not included, but the tales should be told so students of these situations can intelligently battle them if and when they surface again. Behold a few heads of the LI hydra. The Game Soundtrack A pretty popular game gets a call from its fans for a soundtrack to be sold separately so the fans can enjoy the music on its own. The soundtrack would be inexpensive to produce as the content already exists. A small record company is approached and provides a boiler plate contract offering a $2000 advance on royalties. Reasonable given that game soundtracks sell a maximum of around 50,000 units in the US (far more overseas). The response from company executives is that such a soundtrack has the potential to damage their IP, and getting their legal team to even look at the boiler plate contract would cost more than the album would sell in the first place. The fans, distraught, end up ripping the soundtrack anyway and distributing it however they can. Years later, a soundtrack is released for a future edition of this game that as it turns out becomes fairly successful and a worthy addition to the franchise, IP and all. Pity, the sales could have been even higher had soundtracks for the series been released previously and awareness was already in the marketplace. The Negotiation You have a situation where two parties are interested in collaborating to produce a fun, small scale product. The development of the product takes around 3 to 4 months. The legal negotiations of the product take well over 5 months. Note that this process was not continual negotiation, but term deliveries and revisions with at least one to three weeks of time in between, just waiting for a response. Just who wins here? The International A business development VP specifically requests a manager to come up with less expensive ways to outsource its audio. The manager finds several solutions, all of which are overseas, one of which is in Finland. The budget for this project is smaller than small, so it seems like a good idea to draw up a contract for the less expensive composer in Finland. When the request gets through to legal, a response comes back over the phone: "Are you stupid?" That is a direct quote. Disregarding the complete lack of professionalism, the manager inquires why the request is "stupid", with the response being that legal work to negotiate a contract in Finland might just outweigh any production savings. Translating, some sort of "moral" law, and a few other bits and pieces would cause quite a bit of headache for the legal team. Fortunately, the contract finally gets created, but again, as far as the process goes, who wins here? Nobody as far as I can see. So, what have I learned from this? Lawyers are great at protecting things. They're just terrible at communicating, sometimes downright lazy, sometimes rude, and terrible at marketing themselves so that people in positions of power can make intelligent decisions. Not one lawyer I've met has "enabled" anything, rather they've cause a great deal of hindrance. In fact, the most legally wise and effective people I've met are heads of companies, not their lawyers. Peculiar, isn't it? Rather than more moaning, I'd be interested to hear from people who have not legal horror stories, but legal dream stories. "My lawyer rocks!" "She saved our bacon and was courteous and informative every step of the way!" Please, regail me and let me see the "Grisham light" that at this point I can only imagine exists.
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When that dreaded letter / email arrives informing you that "all your IP belongs to us", unless you know you are in the wrong, simply reply politely and tell them "to go for it" / "do their worst". Don't call a lawyer. Don't give it a second thought.
If they're serious they'll get back in touch. 9 times out of 10 you never hear from them again.
NOTE : This doesn't work with Apple. ;)
And yes, the primary job of a corporate attorney is to protect the company. I'm not entirely sure what you mean by "enabled," but if your company didn't have attorneys looking out for their interests, it very well could become entagled in legal complications that prevent any sort of productivity. In that sense, they are enabling the company to produce.
From a lawyer's perspective I can't really see what's wrong in any of the scenarios you've described here. In the soundtrack scenario, it doesn't sound like the issue even made it to the legal dept. In the negotiation scenario, it does sound a little slow, but it's also not clear that any haste was requested. Or that the time taken to work out the legal issues harmed the product in any way. In the final scenario, it was unprofessional to call the client stupid. But certainly, the costs of drawing up a contract with a country that has different laws and language are significant. You ask, "who wins?" but I don't understand what you think that the lawyers in these situations should be doing. They're doing their jobs. Protecting you.
If you want to run out and produce games and sountracks and international partnerships without legal protection, it would probably be a lot faster, yes. And easier, in the short term. But in the long term, it would actually be much, much more difficult.
My work typically involves protecting large companies from wrongful termination lawsuits, so I doubt that you'll find any of my stories to be particularly uplifting.
My reasoning is based on individual experiences, which when taken together give me an overall negative view. Rational thought tells me that if I were to take all the positive results gained from lawyers and put them up against negative results, the positive results would outweigh the negative.
Robert, in considering the process of the soundtrack scenario in hindsight, I wouldn't say it was speed that was an issue, and in truth, lawyers were only a secondary roadblock. The executives I dealt with just didn't want to do the soundtrack, and used lawyers as a reason.
In the case of the small project having longer legal discussion than development time, clearly, the legal reps involved specifically delayed communications over a project that probably won't even earn as much money as the fees they're charging. But that's a much larger discussion that doesn't just involve lawyers but anyone that is paid too much for their services.
So to sum up, as I said I understand why lawyers do what they do. But like everyone else in the game industry (or indeed any industry), there's room for improvement in how they do it. I just think there's more room than in other skill sets (art, programming) that seems clearer to me in the manner of how their business is conducted.
First, the soundtrack issue was not a legal one. It was a strategic business decision. The legal issue merely framed it.
Second, the basic thesis of your argument seems to be "Wouldn't it be nice if IP law just went away...?" That's cognitive dissonance. It's like blaming the messenger. Just because you don't *want* there to be legal issues doesn't mean there aren't legal issues. You must accept them and deal with them instead of railing against the world that there are such issues and they should go away so you can code your game in peace. (And, last time I checked, the places in the world where there weren't laws - or lawyers - were very very nasty places to live.) Like it or not, if you're in the game industry you make IP, so you have to be prepared to deal with IP legal issues (the same way if you're in the grocery business you have to be prepared to control your inventory, compete on prices and arrest shoplifters).
Third, many of these issues could be solved by standardizing boilerplate This way you could just pick out the core deal points, agree on them, and refer to the standard boilerplate for further reference. Who could standardize legal boilerplate? A guild would be an ideal organization to do such a thing. Just wrote an argument on this elsewhere (about a Game Developers Guild). Just pick the key deal points, then defer to the Guild's regulations for all the rest. That saves a lot of time.
Honestly, it's hard for me to tell whether I should sympathize with you or not based on the rather general descriptions of the issues you raised above. For example, in the Game Soundtrack section, were the company's lawyers likely to spend an excessively long time examining the contract? You don't say, and honestly, I'm not sure how you could, since you aren't a lawyer and probably don't have a sense of how long those things take to do properly.
Boilerplate or not, you wouldn't believe some of heinous provisions that end up in these contracts. One kind I keep seeing lately are limitation of liability provisions with dollar amounts so low that they might as well be exculpatory clauses. Exculpatory clauses are unenforceable, but some courts treat limitation of liability provisions differently. They seem to be a fairly new phenomenon, so there isn't much case law dealing with them right now. The last time I checked, California courts had a couple of cases dealing with them in construction contracts, and upholding them when they limited liability to around $100,000.
But let's say you're a game developer and you want to submit a game to Kongregate. Their boilerplate contract that comes up in the submission process contains a $5 limit on liability, as well as a forum selection clause that requires all litigation occur in California. Are those provisions enforceable? And under which state's law: yours or Kongregate's?
It may seem like a lot of wasted time and money to you now, but that's only because (I assume) you haven't had to actually go to court over a game-related issue yet. It's a bit like traipsing through a minefield with a metal detector and then cursing the metal detector once you've made it through to the other side because it made you take so much longer to make the trip. Just be glad you didn't explode.
IP law should exist, and should protect those who labor to develop IP. But the three issues I've cited could have been avoided, whether lawyers were directly involved or not. The outcome of my intentions of writing about it are to educate people to at least be aware that they exist and either prepare for them or not attempt to achieve the same goals.
So to be clear, I don't think that spending time discussing legal issues shouldn't happen, and protection of IP shouldn't happen, but it can happen far more efficiently than is happening now, or specifically with the people involved with those issues.
I think the minefield is creativity itself at this point. Imagine you're 15 and you have the opportunity to publish a game all by yourself. Yet because you can't understand a Kongregate contract, you can't. I really wouldn't want to tell people with creative passion that legal protection outweighs their desire to create and share something with the world... but at the same time the "ifs" that come to pass can really take advantage of people I suppose.