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The View from the Other Side: Developer's Bill of Rights

Recently, Eric Zimmerman posted his take on a Developer's Bill of Rights on Gamasutra.  Based on a similar piece for the comics industry, it attempts to address what are seen as common shortcomings in the business landscape for game developers.  Certainly, there are some points that seem reasonable, and there are some that are just common-sense, but there are also several that I see problems with from the publishing side.

While I encourage you to go and read the full piece (which has Zimmerman's commentary and justifications), I'm going to go ahead and cite the actual proposed rights here for ease of reference:

A Bill of Rights for Game Developers

1. The right to full ownership of what we fully create.

2. The right to be billed as the game creator in marketing and on game packaging at least as prominently as any mention of the game publisher.

3. The right for every individual involved in creating the project to be given accurate and prominent credit within the game.

4. The right to move freely between publishers on new game projects.

5. The right to a fair and equitable share of profits derived from a game.

6. The right to full and accurate accounting of any and all income and disbursements relative to our work.

7. The right to promote and the right of approval over any and all promotion of our games and ourselves.

8. The right of approval over means for distribution, as well as for licensing, merchandizing, and other derivative versions of our games.

9. The right to a publishing arrangement that reflects the iterative nature of game development; one that recognizes that changing a game as it is developed is part of creating a game.

10. The right to a publishing arrangement that results in a process that conforms to accepted standards regarding work hours, compensation, and labor practices.

11. The right to acquire publishing rights to a game if the publisher has stopped distributing the game.

12. The right to employ legal representation in any and all business transactions.

13. The right to final say in creative disputes regarding the game.

I think the problems start right at the top with point 1, "The right to full ownership of what we fully create."  While it's a seemingly straightforward claim, that those who actually create a thing should own it, there are a number of common cases that are swept under the rug here.  First, many games are produced under license, often to take advantage of the recognizability of existing intellectual property (IP).  In this case, the developers are not fully creating the game, because they are taking characters, worlds, stories, etc. that pre-existed the game and deploying them in new ways.  What does this do to the question of ownership?  If the game is dependent on those characters, stories, or other concepts from the licensed IP, then to what are the developers entitled ownership?  Given that a significant percentage of the games being produced today are involved in existing licenses, this is a non-trivial issue.

Second, even if the product is an original IP, what does it mean to "fully create" it?  What if the direction of the game is based on market positioning driven by the publisher's marketing research?  While the developer may actually create the assets of the game, the success of the game may well be derived from strong market positioning rather than simply the quality of the game.  On a more concrete level, in my role as a creative manager for a publisher, one of the things that I do is to provide guidance on design issues for games that my company is publishing.  If I contribute significant ideas to the developers, should they still retain full ownership of the IP?  What if I actually help them write the story, define the characters, focus the gameplay?  What degree of contribution do I have to make before "fully create" becomes a concept that doesn't actually apply?  Even if you grant that conceptual development isn't what matters, that it's the nuts and bolts building of the thing (which is not how actual IP law works, by the way), publishers can be a significant partner in development.  For example, our QA team not only identifies and tracks bugs (which is key to producing a quality product and thus very important to the chances of success), but they also make myriad suggestions about tuning, balance, encounters, and features; without all of this feedback, the product would be demonstrably inferior.  In that case, why should the developer be entitled to full ownership of the game, or even the IP, which would have little to no value without the successful execution that the publishing partnership made possible?

Third, in the vast majority of development deals, the publisher foots all of the financial cost of developing a game.  In many cases, this also means funding a significant portion of the studio, paying not only salaries of the personnel, but paying for computers, software, third-party code libraries, motion capture, sound, and more.  All of the benefit of these hardware, software, and other asset purchases accrue to the studio.  In fact, the value of the studio itself is usually financed by the development deal, as the team assembled, the code generated, and even the rent on their facilities are paid for by the publisher.  If the studio is sold to a third party, the publisher does not recoup any of these costs (separate from what they are able to recoup through sales of the contracted game, which can often be only a small fraction of the expenditure).  For what reason does the developer have a right to ownership of the game, or the IP, when all of it is only possible because the publsiher pays for it to be done?  If you hired a contractor to build you a house, financed the purchase of all of their materials and tools (the latter of which they own after the house is built), paid their salaries and even their company overhead, would you also give them a share of ownership of the house itself?  If the house doubled in value during the construction process, should they now be entitled to twice the amount you paid them to build it?  Or would you grant them a fifty percent ownership stake on completion?

I understand that it's important for developers to feel a sense of ownership of a project, that they pour themselves into the process of building it, but I don't think that somehow entitles them to absolute ownership of the end-product.  Given that the publishing partnership entails a disproportional risk on the part of the publishing company (if the game doesn't sell, the developers don't have to pay back any of the money they were advanced), that the studio will never be solely responsible for the success of the product (even if they never got creative, technical, or QA input, they still wouldn't be marketing it), and that studios already get a substantial financial benefit beyond being paid for the cost of developing the game, it seems a bit absurd to also credit them with an absolute title to the game they produce on contract, financed entirely by the publisher.  Now, on the other hand, if the studio funds the entire development effort, I think it is clear that they should have complete ownership of the game, but that's not a development deal, it's a publishing and distribution deal.  The vast majority of game development, though, happens on the publisher's dime, and for that reason, this "right", while it would be a tremendous advantage for developers, hardly seems justifiable.

The second right (credit in marketing and packaging) is general business practice; where this isn't currently true, it certainly should be.  I think the "prominent" part could be argued, but it's really not a significant issue.  The point is that the developer should get credit for having done the development, which is something I certainly agree with.  The third point (accurate individual credit listings) is actually more of an internal issue, in that credits lists are usually managed on the development side, and by far the injustices I have both witnessed and heard tell of on the individual credit side are overwhelmingly due to issues within the development house.  The fourth point (ability to move between publishers) is already a fact, unless the developer specifically gives up this right in the development contract, in which case, they've given up the right.

Point 5 ("a fair and equitable share of the profits") is a sticky wicket, specifically what "fair" and "equitable" mean.  If the publisher pays one hundred percent of the costs of development, it would seem like a fair and equitable share of the profits for the developer would be zero, but this is, in fact, not the case.  Almost all development deals are based on royalties, in which the development costs are an advance against sales, and if the game sells enough copies to make money beyond the development costs, the developer gets a share of the profits for all sales past that point (this is a little simplified because marketing, production, and distribution costs are also factored in) at a rate determined in the contract.  Are those rates "fair" and "equitable"?  It's difficult to say.  I'm sure that some are and others aren't, but I'm also sure that if you tried to adjudicate "fair" and "equitable" in a court of law, you'd end up with no more fair nor equitable resolutions than you had before.  The best that can be done is to say that everyone respects the deal that was made, which is what a contract is for.  In that sense, we're already there.

The hidden issue here, though, is that within a development team, there isn't necessarily any fair or equitable distribution of royalty income.  Some studios do share royalties directly with the programmers, artists, designers, and producers.  Some share royalties indirectly, through bonuses or similar one-time benefits to employees.  By and large, though, the lion's share of the royalties (for those games that actually sell through enough copies to get to royalty payments from the publisher) go to the owners and managers of the studio.  Is that fair or equitable?  I think it's certainly arguable, but again, it's an issue within development studios, not with publishers.  The funny thing here is that the same people (studio heads) who argue that publishers get too much of the pie have no problem hogging the slices when it comes to the people that they pay to do the work of development.  I think that's called irony, or possibly hypocrisy.

The bottom line is that game development is much like doing the chores.  No matter how fair or equitable the split, each side feels like they've done more work than they're credited with, and for a simple reason: they know all the intimate details of the work they've done, and the work their partners have done is abstract.  While a worthy goal in the idealist sense, there simply isn't any way for anyone short of an omniscient and completely impartial observer to really arrive at "fair and equitable" shares.  What we've got now, free adults agreeing to the deal up front, with safeguards in place should situations change radically, is as close as humanity's ever managed to get.

Point 6 (full and accurate accounting) is already a business reality.  I don't think I've ever seen a development contract that didn't include the developer having the right to audit expenditures and income for their project.  If people are somehow leaving this out of contracts, they still have the right to sue for it, but it's a fine principle, and should be boilerplate in any development contract.

Point 7 (approval over marketing) is just a very bad idea.  Should the developer be consulted over how and where their game will be marketed?  Sure, that's just good business practice.  Should they have a right to approve all marketing?  Absolutely not.  I think the demand for this "right" comes from a history of people who've had bad experiences.  The developer puts a lot of time and effort into developing the game, and then they see the marketing campaign, and they go "this sucks; we totally could have done better than this", to which I retort, as game developers often do to game players, it's easier to point out flaws in existing work than it is to create that work.  Publishers have staffs of marketing professionals, with a lot of experience in marketing (not always marketing games, to be sure, but marketing nonetheless).  These people are paid to produce marketing; that's their job.  Developers thinking they can or should make all of the marketing decisions is just hubris.  Let's take the reverse example.  Let's say the marketing team puts together an incredible marketing campaign, and they present it to the developers, and the developers demand changes that the marketers know are going to make the campaign much less effective.  The publisher's already taking all of the financial risk on this product, and the developer's pushing changes that would further risk recouping that investment, the idea that the developer should have a "right" to do this is just insane.  Worst case, if a developer knew that they were going to be fine on the money from the development deal alone, and they never expected to see royalties, and they were pissed at the publisher, they could torpedo the marketing campaign just to screw the publisher.  In an ideal world, this would never happen, but in an ideal world, developers would always make great games.  Let the marketing guys do what they're good at.  Should developers have a right to preview all marketing materials?  Maybe.  Approval rights?  No.

Point 8 (right of approval over distribution, merchandising, and licensing) suffers from many of the same problems.  Not only are developers not always qualified to make these decisions, but they could actively damage the property by making bad decisions in this regard.  Again, if the developers want to foot the entire bill for development, then absolutely, they can have these rights, but if the publisher is funding development, distribution, merchandising, and licensing are what they do, why they fund development in the first place, so these decisions should be in their hands.  Again, the developers should be notified of these decisions, sure, but there is nothing about developing the game that should absolutely guarantee them the right to make these calls.

I'm not sure what point 9 (right to a publishing agreement that recognizes the iterative nature of game development) even means.  I guess it's a good idea, but I fail to see how this could be a right.  It's certainly in the best interests of both publishers and developers to try to do this.

Point 10 (right to a publishing agreement that allows for fair labor practices) is so completely out of the publisher's hands, that it doesn't make any sense in this context.  This issue is one the development studio needs to manage.

Point 11 (right to acquire publishing rights if the publisher has stopped distributing the game) is one that actually does make a lot of sense.  If the publisher has stopped distributing the game for a substantial period of time (let's say five years for the sake of argument), and the developer wants to make the game available for free, or to direct-sell it through download, or to sell it through a different publisher, and (now this is the tricky part) doing so would not infringe on the rights of any other stake-holder (like a licensor, for example, or a third-party contractor), the distribution rights should revert to the developer.  Now, clearly, this would only apply in cases of original IP, since otherwise the licensor still has rights over distribution over products involving their license, but in those cases, the developer absolutely should have ownership over the distribution rights.  The reasoning here is simple; in the royalty structure, the developer has a financial stake in the continued distribution of the game they made.  If the publisher stops making that game available, this nullifies the developer's financial stake, and if this continues to be the case for a substantial period of time, then the publisher has essentially abandoned their interest in the game.  The only other clause that might make sense in this context is to restrict this to cases where the publisher has recouped their initial investment in the game, because then they clearly wouldn't be disadvantaged by losing rights to a product that they have already received compensation for and for which they are not exercising their existing rights.

Point 12 (right to legal representation in all business dealings) already exists as a fact of law.

Point 13 (right to final say in creative decisions) is a tricky one.  In principle, sure, it makes sense that the creative folks should make the creative decisions.  However, the line between creative decisions and business decisions is one that is often indistinguishable.  For example, let's say that the developers decide that they want to include extreme gore, or graphic sexuality, or graphic sexual violence, in a game.  This is their creative vision for the game.  However, this means that the game will be rated AO rather than M, which means it won't be stocked in many stores; in fact, it may not be saleable in some markets at all.  Suddenly, that creative decision has a major impact on the bottom line, and again, if the developers are footing the bill for development, then they have this right, but if the publisher's footing the bill, the developers shouldn't have an inalienable right to make the product into something the publisher didn't want.  On a less concrete level, what would happen if the publisher contracted with the developer to make a first-person shooter, but the developer made a "creative decision" to make the game an RPG instead?  This is another area where the ideal situation is that the development team has absolute control over the creative direction of the project, but the reality is that this simply isn't an ideal world.

So, for those of you keeping score at home, that's one nonsensical claim, two that are purely internal concerns for developers, three rights that are already law, three things that can't be resolved by legal means beyond what we already have, three very bad ideas, and one reasonably valuable suggestion.  Now, this is the point where you'd expect me to slam Eric Zimmerman for making such a ludicrous proposal, for being a dilettante in the arena and writing about things he really doesn't have any knowledge of, or something similar.  But, I'm not going to do it.  Zimmerman acknowledges that it's a flawed list, that it's a work in progress, that some of the points may not be defensible.  He says of the bill in his article, "it could be the starting point for a larger discussion of how the industry works and how we might change it".  That's essentially what I'm doing here, picking up the thread of discussion he started and making it a part of a larger, more informed discussion.  In that sense, the piece served its purpose, and regardless of how wrongheaded many of its claims are, hopefully it serves to contribute to the education of developers, gamers, and critics of the field about the complexities of the business realities of the industry.  And I respect that he's doing some decent critical work on the field.

The one thing I am going to bitch-slap Zimmerman about is that he somehow connects the publisher/developer business relationship to a notional "creative crisis" in the industry, which is complete horseshit.  As he points out in his own article, the forms of development and distribution that are available today are far more diverse than they ever have been previously, that developers with creative projects have, in essence, more outlets than they have ever had.  On top of that, there's tremendous creativity going on every day in the mainstream commercial industry, which we see and enjoy on a regular basis.  I've already made that argument elsewhere, so I won't repeat it in full here. But, given that he's reasonably insightful in other areas, I do wish Zimmerman wouldn't drink the kool-aid in this one.

As his article and, hopefully, my response demonstrate, there is far more to be gained from a nuanced and complex understanding of the issues than from propagating fundamentally flawed misrepresentations.

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