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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
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