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November 4, 2005

Is This the Death of Publisher Funded Original IP?

Filed under: Thoughts and Rants — Tom B @ 3:50 pm

The recent announcement of the formation of BioWare/Pandemic Studios, an alliance between BioWare, Pandemic and Elevation Partners, raises a serious question…Is traditional publisher funding of original IP dead? I suspect the answer to that question is a resounding YES! It is difficult to think of a major publisher that is investing or even interested in original IP. And then only if it is coming out of one of the top independent studios or a spinoff of top tier developers. Publishers are more comfortable with licensed properties and sequels, and rightly so. Even a bad sequel will sell through to an existing fan base. But no matter how cool you know your original IP is, there is no way for the marketing monkeys at the publishers to get a retail commitment to an initial order for a game that no one in the Wal Mart buyer’s office has ever heard of.

Fortunately, publishers have been charging a heavy premium for their funding, often requiring as much as 35% of the net receipts be allocated to the up front funding of the development and taking the IP in the process as well., just to justify the advances. However, if you look at the actually value of the money it really only represents 20% or so of the risk model. The other 15%, as well as the IP rights, are in effect a bonus to the publisher because no one else is willing to fund the development costs. So while a 50/50 marketing and distribution deal is no problem with a fully funded game, a 20% for a publisher funded game is out of the question, even with the IP. I smell an opportunity.

Seamus Blackley has been pitching this sort of model for years. Let publishers do what they do best…market and distribute games. And let those who understand finance fund the development. Well it looks to me like that’s a big part of the Bioware/Pandemic super. studio model and certainly the reason why it was facilitated by the capital group that has $300M to put into the pot. It will sure be interesting to see how things work out as both of these studios understand the value of retained IP and have a talent for repeated hit on original games. A very sweet combination!

November 3, 2005

Awe shit!

Filed under: Thoughts and Rants — Tom B @ 8:24 am

I belong to a certain industry organization which for the purposes of this article will remain nameless…let’s call it the “Club.” And I moderate forums for them and provide general business and legal related information to pretty much anyone who asks for it through their forums as a moderator. I am also on the “Club”’s board.

Well a few weeks ago some poor schmo posts on the forum I moderate about how he had been screwed by his boss. This animator was terminated as an employee a few months before the gold master of the game he was working on was finished, but continued to work on it and generate additional assets for the game. It was he animator’s understanding that he would be paid the same as a subcontractor (From what I was told he was actually paid his NET pay which means that he was actually making significantly less that he had been since now he had to pay income taxes out of the lesser amount.) Then, after he was done with the work on that game, he was to receive a few month’s of severance pay. (It now appears that this was a mistaken belief on the animator’s part…but that has no bearing on our story). So, there was a discussion of the situation on the forum and a great deal of “too bad you should have gotten it in writing…you’re screwed” sort of stuff.

By then I had figured out that the boss he was talking about was Jim Wheeler at Awe studios. The guy didn’t mention Jim or the Studio…but I am a clever boy and figured it out myself. So, to let the animator know how clever I was, I stuck the following reference to his boss in one of my posts…”Jim is being a dick.”

Being the defender of the defenseless and all round badass that I am, I looked at the whole picture and asked a few pointed questions…like were any unique assets you created after you left full time employment new and original and was there any written agreement regarding Intellectual Property rights. I then had the animator call me.

Well it turns out that he was not screwed as he thought - he had Awe by the balls. No written “work for hire” agreement, no right to use his work even though they paid him as a subcontractor. You see copyrights can not be conveyed by anything but a written agreement. And while an employer owns the copyright for works done by its employee, with subcontractors, the subcontractor owns the IP unless there is a written agreement…the law’s the law! So I reported back to the forum and let everyone know that all was not lost and that I was willing to take a big bite out of the bad man’s ass for being stupid enough to allow any unsecured assets into his game.

The game had just announced the Gold Master but had not yet gone to manufacture. This was a perfect storm. I send a Cease and Desist letter to the developer and the publisher demanding they remove my client’s IP from the game and wait for the money to roll in as they beg you for a way out of the mess they got themselves into. I really liked the poetic justice of the whole thing. Greedy developer taken down by his own greed both in trying to screw his talent and by being too cheap to get decent legal help to make sure stuff like this didn’t happen to him.

Well, unfortunately the animator was not really looking for a fight. Apparently he was perfectly happy being screwed or worked out some sort of deal, that was good enough for him, and let me know that it was all a big misunderstanding. And being magnanimous, I called Jim to give him a heads up that his ass was hanging out on this one as a courtesy. Besides, if the talent was not going to act I thought Jim should know how he messed up so he would not do it again. He took the call, listened but didn’t say much more that “duh” and didn’t even bother to thank me for the free legal advice!

That’s not the end of the story.., about a week or two after this stuff happened I got an email from the employee at the “Club” that manages the forums chastising me for the use of inappropriate foul language on the forum because of an anonymous complaint regarding my post. Being an old time free speech advocate and one who actually led the chant “NO MORE BULLSHIT” in college, my response was immediate and, frankly, quite venomous. The “Club” employee was, of course, Jim’s unwitting pawn in our little story - you see I eventually learned that the “so called” anonymous complaint had actually come from Jim! The poor guy I sent my email flame to took the brunt of my anger.

Then the Board of the “Club” got all over my ass for my general coarse language and aggressive writing style on the forums. And for calling someone a “bad” name. The offending line that was actually removed from the forum was by clever secret message “Jim is being a dick.” Actually of course, Jim was actually being a sleaze and a dummy…but why quibble about terms at a time like that. So after about three or four hours of BS and discussions regarding the first amendment and my telling the “Club” very clearly that if it was stay on the board and be censored or leave that I was gone. But also saying very humbly that I understood their concerns and that I would do my best to abide by a voluntary Code of Conduct (apparently to be based on the Girl Scout Code) so that my public statements in the future would not reflect poorly on the “Club.” At that point I had not yet figured out who the anonymous complaint had come from….

So, now Jim is on my Shit List for sure. Once for screwing an employee (even if the employee didn’t care, I do!) And once for acting like a little pussy and complaining to the “Club” because I called him a dick..the little baby! And once for being so intent on saving a few bucks that he actually may have submitted a game to a publisher with unsecured assets in it. And again for not support the “Club” in South Florida. And finally, for being a UM fan- orange and green…what sort of school colors are those anyway?!


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