Who made the Kit?

I did. My name is Tom Buscaglia and I'm an attorney who has been representing Game Developers in various legal matters since 1991. I am also a hardcore gamer who loves games and has a tremendous respect for the people who make them happen. Several years ago I realized that although developers have talents in many areas, many lack the background or temperament to fully appreciate the various legal and business issues that are involved in making a living as a Game Developer. So, I decided that even though I could not “make” games, I could help make them by helping the developers satisfy their legal and business needs.

So, in addition to representing developers, I got involved. I volunteered and founded the IGDA South Florida chapter at a time when there were only a handful of IGDA chapters in existence. I wrote a series of articles which initially appeared on Gignews.com concerning business and legal issues that any start up developer should take into account before going out and trying to sell their game. I also contributed to the IGDA White papers on Publisher Contract and Intellectual Property and even wrote a chapter called Effective Publisher Agreements for the book entitled, “The Secrets of the Game Business.” (There are links to the articles and some of the other materials on the Resources page of this site and in Section Five of the Kit.).

The main reason for those initial Articles was that I had seen too many developers who were, quite frankly, clueless when it came to protecting their business and legal interests. They had just not thought thses things through and were just not ready to deal with the business of selling their game. They just passionately wanted to make games and really didn't care much about dealing with this "other stuff." Too many just ended getting screwed or burnt out in the processes. It seemed that many starting developers were so passionate about making their game that they forgot about tending to their business and erroneously believed that the first contract they were going to have to deal with was a big fat publisher contract. Nothing is further from the truth.

The truth is that if the Developer does not have a sound legal and business foundation for the studio before they go out talking to publishers, in most cases, publishers won't even consider dealing with them or their project. Quite simply, the rookie developer's lack of business sophistication reflects poorly on them as a risk. And publishers abhor risk. The initial articles addressed many of these issues and received a very positive response.

In 2003 I attended the Indie Games Conference in Eugene, Oregon, at the urging of Britton LaRouche of Amped Labs, one of my developer clients. It was a wonderful event - intimate, laid back and a real blast. I had the opportunity to meet with many of independent developers whose primary focus is on taking their time and building their business on a sound economic foundation, with the idea of building their company as their primary goal so that they can keep on making the games they want to make. After all, no matter how good your game is, if your company goes under you will probably not get to make it. I did a presentation on business and legal issues for start up developers based, in large part, on those original articles I had released on GIGnews. The independent developers all said they found them really valuable.

I had early on realized that of all the aspects of starting a game company, securing the ownership of the intellectual property rights to all of the assets in the game was, in my opinion, the most important. Unfortunately, the contracts I had been providing to my developer clients to do this were developed and refined over many years and were sophisticated and customized to each of my client's unique needs. And, they usually cost several thousand dollars to generate. Although they had a real need, most of the Indie developers present at the conference could not afford to retain an attorney to generate a sophisticated document of this nature. I felt bad about the fact that many of these starting developers would not have the proper type of Contributor Agreement they needed when starting their studios. But there was really no way I could justify giving away contracts since, contracts are what I generate for a living and I am sure not in a position to be giving away thousands of dollars worth of free legal work. Not with two kids in college and a mortgage.

However, on my way back from the Eugene Conference I came up with the idea for what became the heart of the Kit. It was fairly simple. Start up Developers really needed to have a Contributor Agreement and if I stripped the one I have developed over the years down and made it fairly generic, I would be able to sell it for much less than what it cost than the several thousand dollars it usually cost to do a custom version of each developer. So, in an effort to deliver this important contract to start up developers at a rock bottom price, I went about turning what had been a customized and unique Employee, Contributor or Independent Contractor Agreement into a generic Contributor Agreement and set the price point at $295.00. The model I used was a version of a contributor agreement I had used in a deal with Electronic Arts that had already passed EA's legal department's rigorous standards.

Clearly, this was a great deal and I was ready to start figuring out how to get this great contract, for a fraction of its usual price, out to developers who needed it. Yeah, right! Nothing is ever as easy as it seems. When I talked about this with several friends and clients they suggested that I add more content than just a single contract, even one as necessary and valuable as the Contributor Agreement. To be honest, I was a little confounded that they didn't understand the real value of the Contributor Agreement that should be costing several thousand dollars that I was offering for a fraction of its value. But they didn't. So I took their suggestions to heart, I sucked it up and decided there was a lot more information that a start-up developer could probably use. So, I set about filling out the remainder of what has now become the Kit, ultimately bringing it into its present form.

The additional content I added is all good stuff every developer should know and have when starting out. For example, the other basic contracts necessary for any starting developer is a good set of NDAs. So, I reached into my bag of contracts and pulled out and polished off a pair of competent Unilateral and Mutual Non-Disclosure Agreements. And then added an explanation on when and how to use them. The starting point was needed and that was a section on some background on why and how to form a company. And a short explanation about the importance of copyright with directions on how to get the forms and filing instructions from the U.S. Copyright Office seemed like a good idea as well. Eventually, I decided to just include the form with the Kit since these forms themselves include comprehensive three page instruction sheet right on them making them fairly easy to use.

So at the 2004 Indie Games Conference I presented the Beta version of the Game developers Kit and, with the help of a few beta testers, finished the Kit and polished off the www.GameDevKit.com website.

So, that's the story of Who Made the Kit and why. It is my sincere hope that this Kit helps focus those wishing to enter the game business on the important basic business and legal issues that they need to take into account when starting out. And that the form contracts and information contained in the Kit are of real assistance in moving them toward establishing a solid legal and business basis for the continuing survival and ultimate success of their development studios.

GL & HF!
Tom Buscaglia, Esquire
The Game Attorney