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July 31, 2008

Man’s Best Friend Sometimes Bites!

Filed under: Game Law Articles — Tom B @ 2:15 pm

One of my clients sent me an engine license to review for him. He was considering a few options and asked me to review and revise the contract on one of the engines he was interested in. I took a look and, typical of most middleware licenses, the middleware developer was delivering the license with few, if any warranties. Well as much as I would prefer that my client get some decent level of comfort in the software he was considering licensing, I understood the issues and was pretty much OK with most of the language. I did however have a concern that if the engine code included some open source software inadvertently included, it might compromise the commercial viability of the game. So I added language into the license agreement that warranted that the engine did not contain any open source computer code that would limit or negatively impact the commercial viability of my client’s game. I didn’t expect this additional language would be a problem since the inclusion of any open source of code would significantly impair the commercial viability of their product as well.

The engine developer told my client that they could not agree to the added language though they assured my client that the engine code had already gone through a full open source audit and was clean. This raised the obvious question. If the code was clean, why not agree to the language? When asked this question by my client, the engine developer’s response was, “Our lawyer will not allow us to agree to this language.” So, my client did the only reasonable thing he could under the circumstances, he decided to use a different engine. And, the engine developer lost the deal. Assuming what the engine licensor was saying about the code audit was true, what the heck was he thinking? Obviously he was not thinking. He was just doing what his lawyer told him. I guess you could say that “the tail was waging the dog!”

Bad Dogs

This month’s Game Law column addresses a very touchy subject, especially for us lawyers, the training and care of your lawyer. I am a firm believer that just like a kid and a dog, every game studio should have its pet lawyer to keep it safe and secure. One to be your friend and companion . . . and when appropriate to bark and growl at those who try to do you harm. It is also a sad but true fact that, just like with dogs, not all lawyers are well behaved and, if not properly trained, can at times cause more harm than good. Just like any good dog, they need to be trained, disciplined and under control or they might just bite you!

Sure lawyers get plenty of legal training in law school and in their day to day practice. But too often they don’t know your desires or the games you work on as well as you do. And few understand the subtleties of our industry as much as the developers they represent. They are ingrained with a commitment to vigorously protect their client’s right to the fullest extent possible. In fact, it is a core element of their ethic. Oddly enough, it is this training and commitment that can often result in serious problems for the developers they represent.

Biting Your Team

One of the most common ways this occurs is in the relationship between the studio and its employees. Game development is a creative process based on intellectual capital. It requires the collaborative effort of many creative individuals. It is also in large part grounded in a culture that has non traditional values when compared to most other businesses. And although not everyone in the game industry is “of the gamer culture,” most of those who create the games are. Moreover, experience shows that often enlightened non traditional management models create the best environments for creating great games.

A well-meaning attorney experienced with traditional employment agreements working to protect his client’s studio to the maximum extent possible, will usually come up with an employee agreement that is offensive to both the sensibilities of the most talented developers and contrary to an enlightened management style. If the studio head just asks their lawyer for an employee agreement and does not describe the cultural and management goals of the studio, they will get a contract that will quite likely interfere with their ability to get and retain talent. The inclusion of non-competes and overly broad intellectual property ownership that extends outside of the scope of the studio’s project can often bruise or even break employee relationships and make it difficult or impossible to get top talent. This is especially sad if the studio ends up with a bad result because they just used an employee agreement without going over it with their attorney to make sure that it is consistent with their management style and goals. This is like just letting your dog run free. It’s sure to chew up some of your favorite shoes if you don’t discipline that critter as to what is, and is not, acceptable behavior on your household. Your studio is your house. You, not your pet, need to set the rules.

The Cost of a Good Puppy

Sure enough, lawyers are expensive. And taking the time to review their work to make sure that it comports with your desires and values takes time. And, like most developers, reading contracts can be a bit painful as well. But ultimately, the harm that an overly aggressive and untrained lawyer can do to the potential long term success of your studio makes this a required task and expense. Otherwise your relationships, both internal and external, can suffer. And the more you engage in meaningful discussions with counsel about your business goals and values, the more likely they will be to incorporate your vision into the ongoing work that they do for your company. The more you treat them like an unwanted hassle, the more likely they will be to simply do a quick hack job on your work and what you are spending on them will not get you what you want or need. Rest assured, the extra time and money you spend on your pet will be rewarded.

Care and Feeding

Often lawyers are strong assertive personality types. And frankly, that’s exactly what you want on your side when things get tough. But this can also create a problem if the studio head is less assertive, as is often the case in a creative business like ours. Communicate your vision and your passion for what you are doing to your lawyer. It will give them insight into your business and a way that nothing else will. It will ultimately make them a valuable asset to your management team, not just an unwanted expense. You should consider throwing them a bone every once in a while too. I always let my clients know that in addition to getting paid, I require a boxed copy of any projects that I am involved in and a mention in the credits. Thoughtful perks like that make for a loyal companion and it costs little or nothing to provide these sorts of “bones.”

You are the Master

Remember that your attorney should be your trusted counsel. But ultimately, the decisions are yours to make, not theirs. Take their counsel and value it. But do not just abdicate your decision making to their advice. It may be easier, but, as in the opening example above, it can lead to situations where your lawyer’s best advice may turn out to be bad advice in terms of your business goals and the manner in which you wish to manage your company or working relationships. If you don’t make the final decisions on these business matters, you may end up bruising your internal relationships with staff through an overly oppressive employee agreement or even losing business due to an unreasonable lack of flexibility, like that engine developer did.

A Good Pet is Worth the Effort

I’m not saying that you need to take your lawyer for a walk every day. But a little extra training and thoughtfulness will make for a loyal and long term relationship that will serve you and your studio well. Get them to understand the culture of the industry and your company. In the long run it will be well worth the extra time and money you spend in the process. You will end up with a loyal obedient companion who will not bite you, your employees or your business partners!

Til next time, GL & HF!

Tom Buscaglia
The Game Attorney © 2008

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