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A warning about contracts from the sidelines of the most expensive gamejam in history
by Rami Ismail on 04/01/14 12:45:00 pm   Expert Blogs   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

As any terrible legal story starts, this one starts not much longer than a week ago.

It's the third day of  the Game Developers Conference, almost two weeks ago when I'm posting this. A bunch of independent developers are sitting in a local restaurant having a meal, and one of them is mentioning a contract that they’re unsure about. The contract is for something called GAME_JAM. I had been told about the idea: a Polaris-run reality show about game jams, an exciting venture for everybody involved. Not only will it help demystify development a bit more, it will expose the massive audiences of Polaris to an important part of gamedev culture. It's an exciting idea, and like Amnesia Fortnight or Super Game Jam, GAME_JAM has tremendous potential to do good for our scene.

GAME_JAM is being organized by a group of well-liked people in and around the independent game development community – curators, friends and business partners – and the premise is great. Involved in GAME_JAM as participants are my friends Zoë Quinn (Depression Quest), Robin Arnott (Antichamber, Soundself), Davey Wreden (The Stanley Parable) and my partner, Adriel Wallick (Game A Week, Rock Band Blitz), so I offer to read the contract for them.

I am not a lawyer. Never claimed to be, never wanted to be either. I am a game developer that has assisted independent developers with hundreds of contracts and negotiations, and I try to advise developers that are less versed in legalese.

Like everything in the indie scene, some people know more about certain subjects than others and we try and share and broadcast that knowledge as much as we can. A lot of the more business-savvy developers help out with reading contracts. I just happened to know everybody involved in this story, so they came to me. As you read more legalese, and deal with more companies of varying sizes, you start to recognize certain patterns, phrases and tones in contracts.

In the restaurant, five minutes of my life are spent in disbelief: the contract is awful. The most striking points in the contract include:

  • Exclusivity: participants were not allowed to appear on similar shows or syndicated YouTube networks for the full duration of the main broadcast timeframe for GAME_JAM.
  • Waiver of privacy: participants had to agree to waive all rights to privacy in any area that is not the bedroom or bathroom. This includes the ability to use hidden microphones and cameras in any area of the production, including “co-ed living quarters”.
  • Right to misrepresentation: GAME_JAM held the right to, in all and any way, misrepresent the developers, their actions and intent for dramatic effect. This wasn’t limited to exaggeration or fabricating stories.
  • Obligation to travel: participants are obliged to travel to the event, and to any other promotional activity or show GAME_JAM required of them. Flight expenses would be paid for only if the participant was more than 200 miles away.
  • Marketing: participants would be required to participate in branded activities, including but not limited to ‘drinking Mountain Dew’. On top of that, participants would be required to advertise the show as requested by GAME_JAM, and would not be allowed to speak ill of the jam, its sponsors or its organisers.

It’s baffling to read that the full budget for GAME_JAM was apparently over $400,000 considering the fact that there is a clause in the contract that asks developers to risk having to pay for their own flights if they’re close to a location they’re required to visit.

The full benefits for the developers in exchange for signing this do not exceed $300 each (threehundred dollars, that is not a typo), lodging and return flights. The participants weren’t in GAME_JAM for the money or fame, they were in it because they genuinely believed they could show the world this little part of game development culture in an honest and diverse way, and they were willing to try that even if that meant they had to drink Mountain Dew.

The majority of the other clauses were simply deal-breakers: a lot of the developers can’t afford travel under 200 miles, the marketing of most of these indies depends in some part on YouTube and the participants were mostly up and coming developers with a reputation to think about. Allowing GAME_JAM to misrepresent their actions and words could have terrible results for their future carreers.

There was a certain tone in the contract that tells you that whoever agreed to send this contract to the developers is completely oblivious to game jams and lacks any respect towards the participant. It also tells you that the organisers did not expect GAME_JAM to yield enough ‘drama’, and that they felt the need to be able to inject drama into it.

Within minutes, I made the note on my phone at the top of this post, and it encapsulated the entire contract in a few lines. I read it to the potential participant to explain how bad things were. They were shocked and we immediately reached out to fellow participants, one of whom contacted a producer on the show to start negotiating. My advice was to not sign the contract or any other legal document GAME_JAM would send.

While the developers had been approached by friends and good people to participate in the jam, that chain of people had been completely circumvented by the legal team sending the damning contract. The contents of the contract and the restrictive terms were a surprise to pretty much anybody along the chain of command that the participants could reach.

Something was terribly wrong.

I normally tell indie developers to negotiate every contract, even if it’s absolutely terrible. This is the first time I told anybody to tear it up and walk away. The contract was terrible, the event was days out, apparently the event was being organized by fragmented parts of a production nobody really had a full grasp on. Renegotiating anything on this scale tends to take weeks. We had days.

I got in touch with someone I know in the organization and tried to get a grasp of what was happening. I just wanted to be near my friends in case something bad happened, so I applied as a last-minute narrator or ‘industry expert’. I hoped they could fly me out to Los Angeles, skipping manning our LUFTRAUSERS booth at Rezzed in Birmingham, UK to make sure everybody would be OK. Maybe there’d be something I could do to help out, but for now, we needed to make sure nobody signed the contract.

We shifted strategy. With the event happening in only a few days, I recommended the participants to not sign the contract instead and make a request to renegotiate the contract to get rid of the most brazen points. Without the contract signed, they could still participate in the jam, and then they would be able to negotiate the terms, decide which affordances to allow GAME_JAM and select or limit the content of the footage GAME_JAM could use.

In the best case, everything would be fine, they’d be able to negotiate the deal afterwards and use a productions' worth of footage as leverage. In the worst case, they’d still be able to walk away and openly discuss the jam.

After spending a few days winding down from the Game Developers Conference in Los Angeles together, I flew out for Eurogamer Rezzed and Adriel remained in Culver City for the jam. We’d be in touch in case anything bad happened, and she promised not to sign anything under any situation, even if a renegotiated contract was better. We were departing from a bad situation, and anything could look like an improvement. We didn’t need improvements: we needed a good contract.

The participants sent a request for renegotiations and the ‘team leaders’ spent the majority of the next day renegotiating a new contract. They received it a day before the event would kick off.

What I was worried for happened: even though the contract was much better – it revoked the misrepresentation clause and specified the exclusivity much more in the developers favor – it was still quite terrible.

I recommended once more not to sign until all terms were acceptable, and I couldn’t emphasize that enough. The potential circumstance of being on-set, with large production crews and your fellow developers waiting for you to being the only one not to sign was always-present, but that doesn’t matter in legal cases: if you put your name on the dots, that’s your responsibility, and you deal with the consequences.

As the first line of Zoë’s completely unrelated article imply, she did cave under that pressure and the slightly better terms. These are not simple emotional forces to deal with, and knowing there’s a huge production team literally depending on you signing is paralyzing. The other developers I advised stood ground, and refused to sign regardless of the potential negative effects on the series.

Either way, GAME_JAM didn’t go well. Between making a total farce out of game jams, it was misogynisticmisinformed and disrespectful. There are a few times when I’d rather have my gut feeling be dead wrong about something, but this was one of them. I received three tweets from the participants containing the hashtag #ramiwasright.

But I can’t be more proud of Robin, Davey, Zoë, Adriel and the other developers for walking away from GAME_JAM. The most expensive game jam in the history of mankind fell apart within a day, and the reason people were able to walk away relatively unscathed was because they had strong principles, they stuck together, and those that didn't sign were able to do that walked away without risk of legal repercussion from the contract.

Contracts are serious business, and they can be both good and bad. I like to think of them as a way to keep people from arguing over dumb things. Here are some general pointers for contracts:

  • Get a lawyer if there is any option. It's possible to find lawyers that'll work for free or a revenue share. In pretty much all cases, having a real lawyer can save you from being tricked by strange wording tricks, misunderstandings and misinformation.
  • Only trust bad gut feelings. When it comes to contracts, trust your gut feeling only when it’s warning you. Don’t sign a contract because your gut instinct tells you it’s OK: always check with people that are capable of verifying a contract, preferably an actual lawyer. If you feel bad about a contract, do not sign, figure out why, and negotiate those terms.
  • Contracts are negotiable. When you receive a contract, it’ll typically be written to be as positive for the sender as possible. It is always possible to renegotiate terms that make you uncomfortable or problematic. When you negotiate, point out the specific clauses that are problematic, point out why they are problematic, and suggest dropping the clause, adding to it, rewording it, or making it more specific.
  • Anything between the lines isn't there. If there is no end date to a contract, there is no end date. If the contract states ‘all and any’, it means ‘all and any’. If the contract says you will be obliged to participate in ‘branding activities’ for ‘Mountain Dew or affiliated companies’, you are literally signing a contract that could force you to go skydiving with a PepsiCo parachute.
  • Define as much as possible. What is a branding activity? What are the affiliated companies? How long will you be required to participate in these ‘activities’? Will you still be required to do these after recording the original show? Ask every possible question and have the contract redrafted until you can’t be forced to do anything that you’re uncomfortable with.
  • Nobody really understands legalese. We're talking about words written by someone with an education of nearly a decade with some of the most stringent entry bars of any possible carreer. If any wording is unclear, ask it to be reworded as something that does make sense to you. It's OK to ask for clarification on legal jargon you don't understand, it's not OK to sign something you don't fully understand.
  • You only have obligations after signing. There is no timeframe and no maximum number of revisions. If the other party complains you’re taking too long or the deal needs to hurry up, remind them that you are under no obligation to sign quickly. You never have to sign now. You’re allowed to request to take the contract home or to run it by legal advisors. Signing binds you to the rules of the contract, not them – of course they are in a hurry.
  • You can walk away. Not signing and missing out is better than signing something bad and being part of it without recourse.

GAME_JAM is over, and it’s an important lesson to all of us. Developers tend to be friends and we want to see each other succeed. We want new people to join the medium, we want to educate and share knowledge. The reality is that outside of our scene, that’s not always the case. I’m so glad everybody got out OK. Huge shoutout to the developers involved and to Jared Rosen, who broke the story on IndieStatik risking his own job. My apologies to those involved in the (great) original concept, who saw the production slowly corrupted by external forces.

Contracts are useful, but they can be extremely dangerous. Handle them with care, and if you’re not completely sure what you’re signing, get help.

For now, I can recommend Super Game Jam as a good insight into the reality of game development and game jams. Don't forget, the original idea of GAME_JAM was great.

Let’s go and demystify game development.


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Comments


Wendelin Reich
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Fantastic to see so much good (e.g., advice like this) come out of such a horrific situation!

Jesse Tucker
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This was a great read. Thanks!

Shay Pierce
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"You can walk away. Not signing and missing out is better than signing something bad and being part of it without recourse."

I can attest to this!

It's hard to imagine an initial contract more gross than this one. Then again, they could have specified in the fine print that the $300 was being paid entirely in Mountain Dew...

Tarique Naseem
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Great advice.

Having been contracting for some years now (more than I care to remember!) I know full well the problems associated with (bad) contracts.

I too have been at the receiving end on one occasion. Your “Only trust bad gut feelings” would have come in useful then, as I did have this feeling, but ignored it, as I thought I had good rapport with the client. As it transpired, the contract was actually used as a weapon to beat me into submission towards the end! Thankfully, lesson learned, and all that.

In all other occasions, the contracts have always been fair (and open to negotiation). They are supposed be a way of indicating what is required of each party during development; Not about tying people down to anything other than making sure the work gets done to everyone’s satisfaction. Now, that's a good contract.

Matthew Fundaun
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Intuition is a powerful thing, and I certainly have to agree with trusting it when you get that sudden overwhelming feeling that something is wrong.

This entire thing really is a horrible mess, a massive disappointment of a first large-scale Jam, and one huge lesson in how miscommunication is the nemesis of any project. I'm just happy people got out of it mostly none the worse for the wear.

The contract advice is extremely useful, and I do have to thank you for it, Rami. If I may ask, does anyone have advice for what one should look for as positives in a contract?

Curtiss Murphy
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Great read! And kudos for navigating through shark infested waters.

Marvin Papin
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Nice nice nice.

Fine that everybody gets out. I cant't help thinking what would have been devs reputation after a "potential" deep misrepresentation.

Game Industry really needs to have a better overview of indies to show to the world. A Game Jam is a good thing to show that but it needs a good valor-full man to leads it. But it should come asap, before bad-intentioned people in suits take starving dev students just out from school to blame Game Industry. This is a common sport now to point out bad side of video games. (I can't help thinkig about France2 (one of the main french channel) bringing games down in 2004 with the japanese joke of the 147 suicides by silicon and a badly oriented images. If you speak french : https://www.youtube.com/watch?v=-7lI9Soqeck)

Michael Pianta
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Yeah, that sounds pretty crappy. I wonder how it compares to other reality show contracts? I bet it's pretty standard, actually. But even apart from everything we now know happened, that contract alone would have given me great pause.

B Marshall
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Wow, thank you so much for writing this. Very helpful, very appreciated.
Not understanding how to deal with a business situation such as this could really discourage new developers from trying to make their dreams a reality, or at least create an intense set back. Excellent post!

Kenneth Nussbaum
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Awesome article, thank you so much for taking the time to write this up. I still can't believe how other professions look at game development. Its a good thing we have a strong community and people like you willing to look out for the good guys. As this story develops and i continue to read more articles the recurring theme i keep seeing is that game development still has a lot of misconceptions around it but their are people in the growing community that have a sense of conviction and are willing to stand by each other. As much as i would have loved to see everyone participate i'm glad everyone didn't let themselves get taken advantage of.

Maika Ezawa
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This is a great article. We should have more articles like these. A lot of people, especially indies, should understand what they're signing up for. Because the people who write those contracts made sure that every word in there is a win for them. And the people who hands the contract know how talk someone into signing them. It always up to the signer to make sure the contract is clear to the letter.

Gary LaRochelle
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I'd be interested in knowing if there was a clause in the contract that addresses what would happen if a game created on the show became successful (made a bunch of money). Does the production company get most of the income? Does the money generated by the game get split between the development team members (or the rest of the game developers for that matter)?

Matt Rabin
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Great insight here. As a tech and entertainment lawyer I'd add that most production companies will ask for everything plus the moon, stars, and all galaxies; although it can be viewed as insulting (often it is!) it's best to keep it mind it's business. You can often negotiate like Rami suggests. Equally as important is to UNDERSTAND the agreement, what you are expected to do and what you can expect from the other side.

Many firms and individual lawyers that know these industries will work with the client re fees if there's the opportunity for continued business into the future.

Colin Sullivan
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Great article. I did want to mention one thing though, the "Nobody really understands legalese" bullet point is often caused by poor drafting. Many lawyers try to draft contracts in plain language, especially when the intended audience does not have much experience with legal matters.

Poor drafting such as that described in the article has the very real cost that it prevents the deal from happening, although from everything I have read it sounds like GAME_JAM had a lot more problems than the legal team.

Brandon Van Every
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Heh, indies, watch out for people who want to mine you as a cheap and expendable resource. Good article. Wish there was a button to "Like" the article itself somehow.

Judy Tyrer
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One of my favorite pieces of advice regarding contracts is to always modify them. This person just writes things in and initializes and then asks the other person to initialize, not because they want to change the contract, but because they want to know what kinds of issues they'll get into if there is a disagreement. If the person with the contract gets all huffy and uppity then is that someone you want to have contractual obligations to?

Alexandru Bleau
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Great article Rami and very valuable information. The "Anything between the lines isn't there" part is so true and valid. If there is something that could be added to the contract because it's common sense or to be expected, but it would just mean more work for the company drafting the article, they will probably and usually leave it out. If there is something that is binding or fixed or forces them to pay or be accountable, even more so.

I don't even keep count anymore of all the contracts I had to modify and add term of payments and conditions, what happened if they didn't deliver the software specs in time, what happens if they request additional features, what happens if they cancel the project, what constitutes normal work hours, etc.

Always check that everything that you want to be in the contract, is in the contract. Otherwise it won't matter what should have been there and what would have been logical after you signed.


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