Game Law: Competent Counsel

Last March at GDC I had the misfortune of contracting the nasty crud like cold that was going around. The cold, combined with the usual late hours and less than normal sleep, made for some incredibly sluggish mornings. So, as I was sitting in the Marriott hotel restaurant having lots of coffee and some breakfast a few days into the show, I noticed the folks sitting at another table near me.

To be honest, I could not actually hear the conversation and have no proof that my impression of what was occurring was, in fact, true. But it sure looked that way to me and I tend to trust my gut. Besides, for purposes of this article, I guess it doesn’t really matter . . . I’ll just pretend I made the whole thing up as a clever way to make a point.

Sitting at the table were, on one side, a casually dressed young man and woman who looked like budding game developers. On the other side of the table was a nice looking fellow, not much older, wearing a suit, but no tie (publisher informal I presume). There were papers on the table and it appeared that tieless publisher’s representative was going through the document and explaining the elements of the contract to these rookie developers. It had 1st deal written all over it. It also had disaster written all over it as well.

I was horrified. I wanted to get up, go over there and make them stop. “What’s the big deal?” you say. After all, they weren’t signing the deal. There was no indication that they even believed what he was telling them or trusted what he was saying.

They could have a decent lawyer or business agent at their disposal and were really just having a little discussion so that they could get clear on the deal terms. Besides, the suit seemed like a decent enough guy and for sure knew way more than they did but this sort of thing. Who better to ask? No harm, no foul . . . right? Wrong!

Certainly anyone new to the business end of the games can gain a great deal from talking with folks with experience in the industry. And who does more deals than a publisher’s rep anyway? There is for sure a big difference between making a great game and making a great game deal.

So, it’s natural to want to acquire as much information as possible when looking at getting that first deal. It’s just that the publisher’s representative that you are looking to get a deal with is the last person you should be getting this information from, even if he or she is a great person and being really straight with you.

First - the obvious. No matter how much he may love your game (he would not be talking to you about a deal if he didn’t), this guy works for the publisher. That means that at the core, he is on the other side of the deal and has substantial responsibilities to their employer that he must honor.

More importantly, unless he has experience on the developer’s side of game deals (and some publisher reps do have this experience) even if he really wanted to help you out he still doesn’t have the developer’s perspective on a deal. The reality is that a publisher’s rep will not give you anything in a deal that you are not savvy enough to ask for, even if he or she could deliver it as part of the deal if you did ask.

Second, you immediately make the publisher’s rep the authority on this deal. He’s the one who “knows” and you are the ones who don’t! You see, even if your publisher’s rep is a great person and wants to help you, you have given up your bargaining position by revealing your lack of experience relative to the business of games.

Once that impression is made on a potential business partner, it will stick for the duration of the relationship. Moreover, even if they do not want to intentionally take advantage of your relative naiveté, once they know that you do not have a solid handle on the process or what to expect, they will be in the position to dictate the entire deal. There is really no need to let a potential publishing partner know exactly how green you really are.

After all, many new developers have folks on board with business experience and the more competent the publisher rep believes you are, the less likely they are to take advantage and the more likely they are to accept provisions favorable to your interests.

This does not mean that you should misrepresent your level of business acumen. Just don’t broadcast your lack of it. Stay cool and take your time. Don’t spill your guys and try not to go all giddy just because someone who can help get your work to market actually likes it. After all, you are in the dream business. Making your dreams into reality is what developers do. So, don’t go all “school girl” if someone takes a shine to your work and you begin to succeed. It happens.

Maybe not as much as we would wish, but it happens every day. Play your cards close. Don’t jump at the first indication of a deal. Do not let anyone push you into or through a deal. If you are lucky enough to get into a negotiation, take your time and go slow.

There is a scene in the film adaptation of Steinbeck’s “Cannery Row” where Nick Nolte’s character Doc, a marine biologist working on the cannery row, takes Suzy DeSoto, a hooker from the local brothel played by Deborah Winger, out to a fancy dinner. She has never been to a place like this in her life and is worried that she will not know what to do as the meal progresses, what with all the numerous different forks, spoons and such.

As Suzy narrates the experience, she gets through by making her moves mirror Doc’s and always stays a little behind him, going slowly move by move through the entire meal. And in the end, she pulls it off and it worked out fine. No one even suspected that she was in way over her head the entire time.

Similarly, when you move into a deal scenario, take your time. Don’t broadcast your inexperience. Everyone naturally assumes that those they deal with are as competent as they are. So, don’t show them different. And for someone starting out in this business, that just may help get you a deal that is better than the one that might otherwise have been offered.

The assumption that every developer gets screwed in their first deal need not apply in all cases. It sure doesn’t have to. So, take your time Suzy . . . and things may just work out all right. I sure hope it did for those folks at the Marriott!

(© 2007 Thomas H. Buscaglia. All rights reserved.)