Tom: Ownership - It looks like Activision owns everything (3.1), the game assets (3.2), the technology (3.3) and even co-owns the tools (3.4), which are usually left for the developer. Considering the scope of the deal this could be reasonable. In effect, Spark is a captive third party studio during the term of the agreement.

Chris & Dave: In section 3.3, Spark grants Activision a “license” to exercise its moral rights. This won’t be effective in many countries (such as Canada) where moral rights are protected. Moral rights arise when a copyrightable work (such as game code, art, music, etc.) is created. Moral rights give the author of the work the right to have his or her name associated with the work and the right to prevent anyone from modifying the work in a harmful way.

Moral rights can’t be transferred; they can only be waived. Also, a company (such as Spark) can’t have moral rights; only the people who worked on the game can have them. So the best way for a publisher to draft a moral rights clause is to require the developer to get moral rights waivers from every person who contributed to the game.

Section 3.4 gives Spark and Activision joint ownership over the games’ development tools. This is unusual (often the developer will solely own the tools). Joint ownership can cause problems in the future if the agreement does not specify what rights each party has in the jointly-owned property. For example, can Spark license the tools to a third party without Activision’s consent?

Tom: Of course, Spark has to make the game (4.1.1) in conformance with the TDD (Technical Design Document) and the GDD (Game Design Document). Delivery of the game in compliance with the milestone schedule for the first game (Exhibit A) and the following two games milestones will be done by subsequent amendment created later.

They also are obliged to provide demos (4.1.2), provide ongoing bug fixes to the games (4.1.3), return any software provided to it by Activision (4.1.4) and create any necessary installers (4.1.5).

Chris & Dave: Demos are critical to the success of a game, but they can also be time-consuming and expensive, so it’s a good idea for the agreement to contain more detail about what kind of demos are required, how many are required, and when they’re required. This will help with budgeting and sticking to the development timetable.

Section 4.1.3 requires Spark to provide free bug fixes “for a reasonable period of time”. This can only lead to future disputes: Spark might think six months is a reasonable period of time, but Activision might think 5 years is more reasonable. It’s better to use a specific time period instead.

Also, Spark is required to fix “Defects” which include “deviations from commonly accepted standards for normal and correct operation of computer programs.” It’s normal to require a developer to fix a deviation from the game specifications, but requiring a developer to comply with “commonly accepted standards” is vague and uncertain. Again, it just sets the stage for a future dispute about what these “commonly accepted standards” are.