[In his latest Game Law column for Gamasutra, veteran lawyer Buscaglia discusses how developers should work with publishers on a contract for your game - urging active, intelligent negotiation at all times.]

The proper negotiation of a contract is a process that is too often ignored by developers, especially those eager to get a deal. I suspect that part of the reason for this is that the stereotypical game maker neither likes nor enjoys the process.

The harsh reality is that many, if not most, publishers are so used to developers being passive about the negotiation process that they have become arrogant and unwilling to actually engage in a meaningful negotiation dialog with developers.

Instead, they too often become rigid and inflexible when it comes to their contract negotiations. And I suppose this attitude comes in part from, among others, the following factors:

• An overwhelming financial advantage held by publishers in the relationship
• Publisher risk aversion
• The perception, at least, that there are more developers than deals
• A failure by developers to have or communicate a long term vision for their studio
• A lack of appreciation of the "process" of contract negotiation
• Developer fear, rather than appreciation, of being exploited

These factors are certainly not present in every deal dynamic, nor do they apply to every publisher or developer.

Moreover, with the vast array of innovative approaches to succeeding in the industry, even the traditional developer-publisher model is hardly a standard for the way we do business.

However, there may be some value to just accepting the stereotyping for the moment and proceeding with the discussion to see where it takes us and what we can learn in the process... so, shall we proceed? 

Publisher Financial Advantage

Sure, the publisher has the money. And lots of it. And the developer needs the money to make the game and build their studio. What possible leverage can the developer have in a situation like that?

Well if you look at it like that, it may actually make sense to take whatever deal the publisher offers and just "take your beating like a man." But, I don't think so. 

Step back a little and consider what it is that the publisher sells... games. And what does the developer have that the publisher does not?

A game. And all the money in the world is useless to a publisher if they have no games to sell -- unless they want to open up a bank. 

Oh yes, they want and need your game. If they didn't, they would not be talking to you. The old Steve Miller song, "Your Cash Ain't Nothin' but Trash" comes to mind.

So, while the developer may desperately need to dollars, the publisher needs the games. I sense the makings of a mutually beneficial business relationship.