62 THE GAME PRODUCTION HANDBOOK, 2/E
LEGAL ISSUES AND PRODUCTION
The Game Attorney
After the assets are secured and the initial deal is done, a producer will not be deal-
ing with legal issues on a day-to-day basis, if things are running smoothly. However,
in some instances a lawyer needs to be consulted, especially when an independent
producer is creating a game for a third-party publisher. Some examples are as follows:
the actual project is starting to deviate and exceed the original scope of work that was
detailed in the publishing agreement; minor modifications are made to a deliverable
agreement; the funding source changes; or anything else affects the quality and timing
of the agreed-upon deliverables. In cases like these, the publishing agreement must
be amended to compensate for the additional time and expenditures the developer
incurs. This is necessary to keep the developer as a viable economic entity.
Publishing contracts, like any other contract, are organic—not static—and when
necessary should be amended and reviewed throughout the entire development
process, either by the producer or the producer in conjunction with an attorney.
Additionally, if the game sell-through warrants it, an attorney’s assistance may be
necessary for a post-release audit of the game sales to make sure that the publisher
is paying out the royalties accurately.
The producer and his attorney should review all of the game assets from day
one to make sure that all of the game assets (art, 3D models, music and sound, pro-
gram code, and, of course, any third-party trademarks) are unimpaired and owned
by the developer. After all, you can’t sell what you don’t own. So, making sure that
the developer owns exclusive rights to all of the content in the game is the essential
first step to selling any game.
4.2 INTELLECTUAL PROPERTY RIGHTS
Creative ideas are a commodity in the game industry; every day, developers are
creating new characters, new storylines, new code, and new game designs, in the
hopes that these ideas will come together and create an entertaining gameplay-
ing experience. All of these elements are considered Intellectual Property (IP).
IP Rights legally protect inventions, symbols, and creative expression and can
be bought, sold, traded, given away, licensed, and so on, in the same way as tan-
gible property (like real estate). However, since an IP is an idea and, therefore,
intangible, it must be expressed in some discernable way to make it tangible and
protected by law.