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May 30, 2009

Tim Langdell, his Trademark and the IGDA

Filed under: Thoughts and Rants — Tom B @ 12:57 pm

This is a response to the recent dust up over, IGDA Board member Tim Langdell and the EDGE Trademark . I am speaking now for myself and NOT on behalf of the IGDA.

I call that a hatchet jobs aimed at Tim L. and at the IGDA because the author, the Editor of the Gamasutra web site didn’t do what I feel is the necessary due diligence before posting. I think this matter is obviously a bit more complex that Simon’s article presented it. I feel it was irresponsible of Simon to not ask everyone involved for their comments prior to poast, as is the standard practice of journalists.

This dispute relates to a company that believes that is it enforcing its Trademark (See below). While you or I may not agree with those laws related to Trademarks, they are what they are. Moreover, the IGDA represents the individuals who make games, not the companies that make them. So, although no one is more committed to independent developers than I am, this is a legal dispute between two companies regarding an alleged Trademark infringement. So, while I anyone’s effort to fight for the little guy, these matters are for the court of law, not for a court of public opinion.

As someone who has litigated intellectual property cases, I can tell you that these cases are never as simple as they might seem to a lay person, especially when one only has access to one side of the story. I suspect that if you had spend 20 odd years building a Trademark to brand your studio and games, and paid to have a Trademark registered, you might also feel compelled to enforce your trade name. BTW, if you do not enforce your Trademark, you may lose it. So you may want to also take that into account in your analysis!

This is hardly a matter for the IGDA either…Board members do not lose their legal rights when elected to the Board. I personally do not think that lobbying the IGDA to intervene or even take sides in a legitimate legal disputes not the right approach, even if one of the parties to that dispute is a member of the BoD!. If Tim’s position is correct (and I do not have enough information to determine that issue one way of the other) you are recommending that the IGDA support a party who has infringed a legal and enforceable Trademark. That’s just nutty!

I do not see that as a viable position for the organization under any circumstances. In any case, I do not see how Tim L. vigorously enforcing his legal rights as contrary to the code of ethics in any way.

Again, I am speaking now for myself and NOT on behalf of the IGDA or as an IGDA Board member. But as me, Tom Buscaglia, The Game Attorney.

Tom B

************’
Word Mark EDGE
Goods and Services IC 009. US 021 023 026 036 038. G & S: computer game software, computer game programs, video game software, video game programs, computer game software that may be downloaded from a global computer network, video game software that may be downloaded from a global computer network, computer game cartridges to be used in computer game machines adapted for use with television receivers, video game cartridges, computers, computer accessories, plug-in boards, peripheral devices, flash cards, set-top boxes, cable modems, mobile game devices, handheld game devices, video game consoles, video game assessories, video game peripherals, augmented reality games, virtual reality games, games designed for use with mobile entertainment devices. FIRST USE: 19840601. FIRST USE IN COMMERCE: 19840601
Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 78807479
Filing Date February 5, 2006
Current Filing Basis 1A
Original Filing Basis 1A
Owner (APPLICANT) EDGE GAMES, INC. CORPORATION 530 SOUTH LAKE AVENUE #171 PASADENA CALIFORNIA 91101
Assignment Recorded ASSIGNMENT RECORDED
Prior Registrations 1853705;2219837;7502940
Type of Mark TRADEMARK
Register PRINCIPAL
Live/Dead Indicator LIVE

——————————————————————————–

April 2, 2009

IGDA Rant

Filed under: Thoughts and Rants — Tom B @ 7:30 am

This is part of an email to Darius Kazemi regrarding a blow up on one of the IGDA forums as a result of a former IGDA Board members touting the value of working his employees liik dogs, but paying them like princes and the perceived failure of the IGDA to publicly criticize him for his statement….

************
You know when someone gets elected to the Board they are not issued a cape or any superpowers. Most just want to help out…sure, some want to pad their resumes or feed their egos…but for the most part the board is very dedicated to the org as a whole. But that does not mean that they are the stooges of the members or have to do what a few vocal people think they should.

Here are a few of the more urgent issues the board is presently addressing….

A diminishing membership, both individual and studio affiliate

Operation loss and diminishing cash reserves

Replacing the Executive Director

Launching the new web tech

Continuing and expanding our stand alone conferences

Implementing a marketing and communication plan (we have none)

Launching the IGDA Magazine

QOL Surveys (both Studio and individual)

Managing our relationships with other conferences (like the whole China GDC/GDC China cock-up)

Chapter formalization

SIG formalization

The moving forward with the IGDA Foundation

Finding sponsorship funds to do all this stuff…

I am sure that this list is incomplete…that’s just off the top of my head. Right now every member of the Board is putting tons of time into the IGDA without thanks or compensation…I am not bitching here…but I have spent most of my office time since I got back from GDC on IGDA stuff…and I know that Bob Bates has done nothing else as well. And we all have to make a living on the side.

So, if you think you’re frustrated with the IGDA, you have no idea. The IGDA as an independent entity is less that 4 years old (since the CMP spin off). We have one employee (well we should, but right now we don’t) who is the Executive Director. We also have Talley Group, the Association Management Company that handle the back end. The rest is all volunteer efforts..from the Board chair on down…some more than others (I don’t want to even guess at the actual monetary value of of my investment of time into the IGDA over the past 8 years.)

The Board usually meets by phone for 90 minutes every month or two and has a face to face two day retreat annually to try to set priorities and make action plans. Not a great deal of bandwidth there is there? I am not asking for any appreciation here..but perhaps a little understanding of the inherent limitation of a member funded volunteer organization…we can only do what we can do….

Darius, I know you do a great deal for your chapter…I ran one for 5 year myself…but doesn’t it sort of irk you when someone shows up at a chapter meeting and tells you how your chapter is a stupid waste of time and sucks? And then tells you how to run the chapter because they have a special bone to pick…and they know better then you do how to run things…I’ll bet that engages you in a positive manner to make changes and to prioritize their issues…well maybe not. In fact this sort of attitude does just the opposite. I actually had one of the fucktard’s on the forum string tell me I should resign from the Board because I am such a failure?!?!?! WTF is up with that?

The Board does not do a very good job of engaging its volunteers…but those who want to bitch about the Board need to think about this same issue…the Board is also volunteers and telling them that they are failures, should quit, and are not doing their jobs does nothing…at least nothing positive. It just makes me wonder, “Is doing something positive even on the agenda here?”…or is it just telling others how they should live their lives because you know more about what’s good for them than they do…Bah! What arrogant bullshit!

I was raised a socialist. I took the the streets the day after Kent state, I am the “man of the people” on the Board. And in my heart I agree with the position regarding QOL expressed by the most vocal of those posting on the thread. But that said, I do not think it is the place of the IGDA to tell anyone, employer or employee how to work. If someone believes in a high QOL, then they should work someone where that is the standard. Everyone gets to vote with their feet! If they want to work long hours, for whatever reason, that is their decision. This effort to turn the IGDA into a moral police force “that knows better what’s good for you than you do,” is lame as shit. And as much as I believe in QOL, I will have no part in it…

The IGDA QOL effort must be one of education of employees and enlightenment of management (a carrot, not a stick!), not one of sanctions or anything else like that.

April 1, 2009

Leaving the IGDA and the Game Industry

Filed under: Thoughts and Rants — Tom B @ 9:06 am

After some serious soul searching, I have decided to resign all of my various positions with the IGDA including the Board of Directors and as the Chair of the IGDA Foundation. Several matters have come up recently that have made me realize that my efforts within the IGDA on behalf of game developers have been ineffectual and, frankly, a complete failure.

In addition, I have decided that I can not longer work in the Game Industry and have decide to change my practice focus to personal injury law where I can make some real money!

Posted on April 1st 2009!

March 17, 2009

AmEx Sucks Dog Ass

Filed under: Thoughts and Rants — Tom B @ 9:31 am

So, in advance of my major expenditures at GDC, I paid down my AmEx Starwood card so that I could use it to pay for my Suite at the Westin for the week. Today I got word from AmEx letting me know that they reduced the credit limit of that card by….yep, you guessed it, the entire credit reserve I had set for the Hotel at GDC! Fuck me running! What absolute crap. Never late, no delinquencies on the credit reports. Yes, I do tend to keep my cards close to the max credit, but I d not see how I can ever change that if every time I pay down a card they lower the credit limit.

Having an AmEx card used to make me feel like I was secure. Not it just makes be feel like a fool!

All I can say is, “Fuck you American Express….you suck dog ass!”

March 3, 2009

Adam Martin Quitting the IGDA

Filed under: Thoughts and Rants — Tom B @ 11:20 am

So, I just finished a huge rant about Adam Martin’s decision to quit the IGDA after losing his bid for election to the IGDA Board of Directors…and then inadvertently navigated away for the post page and lost the entire thing…well, maybe that for the best anyway since I pretty much was calling him out as a whiney little bitch who would rather quit after a loss than jump in deeper and continue to work to make the IGDA better. So, I guess I’ll do it again…in a shorter version…

I said that with much more clarity the first time, but I guess the message is the same. I am sad that the IGDA is losing someone as passionate about the IGDA as Adam claims to be…but if he does quit, maybe he is not as passionate as he claims and the org is better off without him. Heck, I don’t know. But as one who has been involved actively in the IGDA for over 8 years, founded and single handedly ran the South Florida Chapter for 5 years, lost his first effort to be elected to the Board but came back and has been elected and then reelected to the Board, was the moving force on the Board for the formation of the IGDA charitable Foundation which I now chair, created and Chair the IGDA ECQC Taskforce, is working with others to relaunch the Seattle Professional IGDA Chapter and moderating several IGDA forums.

So, I say “Cowboy up Adam.” If you don’t like the way the IGDA is, get into it more and do everything you can to make it better. And if you do go forward with your stated intention to quit, don’t let the door hit you in the ass on your way out. Me, I get so frustrated with the way the IGDA is that I am ready to pop a blood vessel much of the time. But I have more fight in me than quit…and there is still lots to get done around here! Yeeeehhhhaaawww!

January 19, 2009

USA Service Outage

Filed under: Thoughts and Rants — Tom B @ 10:50 am

Complements of Tom Trow:

Dear World:

We, the United States of America, your top quality supplier of the ideals of liberty and democracy, would like to apologize for our 2001-2008 interruption in service.

The technical fault that led to this eight-year service outage has been located, and the software responsible was replaced November 4.

Early tests of the newly installed program indicate that we are now operating correctly, and we expect it to be fully functional on January 20, 2009.

We apologize for any inconvenience caused by the outage. We look forward to resuming full service and hope to improve in years to come.

We thank you for your patience and understanding.

Sincerely,

THE UNITED STATES OF AMERICA

December 17, 2008

The Wrong Church

Filed under: Thoughts and Rants — Tom B @ 10:59 am

I guess that there are just some clients that I have to turn down. Here’s a beauty. This fucktard acutally asked me to help him with a site that distributes game hacks. His justification is that hacks are not really cheats and that they help older gamers compete with teen pros. Oh yeah, they also add additional game play to game that have been played out. What unmitigated crap!

Well I am a 60 year old gamer who has never used a hack in over 12 years of gaming. Hacks ruin games. They are not acceptable under any circumstances. Those who use hacks are lower than the slime on a snakes belly…they are without honor. Clearly, this guy came to the wrong church with his bullshit!

Here’s his email and my response…

To: XXXX
From: “Thomas H. Buscaglia”
Subject: Re: Video Game Attorney
Cc:

XXXXX

Thank you for your interest in my services. As an old school hard core gamer, I could not in good conscience assist you in what I believe is a morally bankrupt endeavor. Moreover, in most cases hacks violate the EULA (End User License Agreement) that accompanies the game.

Normally, on a turn down, I wish the potential client that I am declining to represent good luck with their project. But in your case, I sincerely hope that you fail miserably.

Tom B

.At 07:11 PM 12/16/2008, you wrote:

Hey Thomas my name is XXXXXXX.

Here is the long story as short as I can make it. =)

I am an avid gamer and even a developer. I love games but noticed all games and gamers use hacks at times. I tried my first hacks 3 years ago and noticed all the sites who sold hacks tried to steal cdkeys, credit card info, etc. So I decided to put a legit site together that had all PC game exploits, glitches and hacks in one place. We treat everyone on the site with respect and host a ton of info for each game so people who are bored with the games can go back and play again. Also let me say that hacking is not all bad, I actually have letters from people who say it has helped them compete with the teen pros. These are 40+ year olds who are not pros or who have been playing for a long time. We don’t make hacks that rage and ruin a server, just something extra to help a bit and make it more entertaining.

With that said I am looking for a lawyer who can help me make the site 100% legal so that I am not in violation of any intellectual property laws, DMCA, etc.

Regards

PS: Hope that was short enough. =)

December 10, 2008

It’s Magic!

Filed under: Thoughts and Rants — Tom B @ 2:21 pm

Holy smoke!

December 2, 2008

Game Law Articles Updates

Filed under: Thoughts and Rants, Game Law Articles — Tom B @ 1:52 pm

As you may know, I have published a bunch of articles on the Gamesutra.com entitled “Game Law” and elsewhere various industry business and legal issues. I have them assembled here in case anyone had any comments or questions about the topics covered. Since I was provided an “Expert” blog on Gamasutra a few years ago, my articles have been done on this blog and copied there. So, in addition to the links below, you may want to also check through the other posts here for other articles of interest. You are welcome to redistribute any of these articles or posts for free, so long as you include include my copyright notice at the end of each article and my firm’s web address. Please include the legend “© 2011, Thomas H. Buscaglia, All rights reserved” and the www.gameattorney.com URL in each article posted or published elsewhere. The sale or any other commercial exploitation of these articles, in whole or in part, is strictly prohibited.

Here’s a list of, and links to, my Articles and publish dates:

# Gamasutra - Game Law: So, What’s the Dealio? [10.23.08]

# Gamasutra - Game Law: Get Your Pigs in a Row! [06.03.08]

# Gamasutra - Game Law: Man’s Best Friend Sometimes Bites [03.28.08]

# Gamasutra - Game Law: Game Law: 50/50 Deals on Ancillary Revenues and Sublicenses [1.8.08]

# Gamasutra - Game Law: Discipline and the Up Sell [10.30.07]

# Gamasutra - Game Law: Scrum Deals - Good, Bad or Ugly? [08.28.07]

# Gamasutra - Game Law: Competent Counsel [06.27.07]

# Call Of Duty: Finest Hour - The Contract (Linked to Gamasutra site)

# Game Developer Magazine: Hey, That’s not the deal we talked about! [10.06]

# Gamecloud.com: Game Attorney Interview - My Life and Times [09.6.06]

# Gamasutra - Game Law: Contract Mumbo Jumbo 101 [07.25.06]

# Gamasutra - Game Law: Everybody Conga…Well Maybe not Everybody! [04.28.06]

# Gamasutra - Game Law: The Good News About Digital Distribution [03.01.06]

# Gamasutra - Game Law: Prior Restraint of Games - A Rant [01.19.06]

# Gamasutra - Game Law: To Sue or Not to Sue…That is the Question [12.07.05]

# Gamasutra - Game Law: A Case for Flexible Milestone Deliverables [10.27.05]

# Gamasutra - Game Law: Audit Rights - Use Em or Lose Em! [09.19.05]

So, What’s the Dealio?

Filed under: Game Law Articles — Tom B @ 1:45 pm

The proper negotiation of a contract is a process that is too often ignored by developers, especially those eager to get a deal. I suspect that part of the reason for this is that the stereotypical game maker neither likes nor enjoys the process.

The harsh reality is that many, if not most, publishers are so used to developers being passive about the negotiation process that they have become arrogant and unwilling to actually engage in a meaningful negotiation dialog with developers.

Instead, they too often become rigid and inflexible when it comes to their contract negotiations. And I suppose this attitude comes in part from, among others, the following factors:

* An overwhelming financial advantage held by publishers in the relationship

* Publisher risk aversion

* The perception, at least, that there are more developers than deals

* A failure by developers to have or communicate a long term vision for their studio

* A lack of appreciation of the “process” of contract negotiation

* Developer fear, rather than appreciation, of being exploited

These factors are certainly not present in every deal dynamic, nor do they apply to every publisher or developer.

Moreover, with the vast array of innovative approaches to succeeding in the industry, even the traditional developer-publisher model is hardly a standard for the way we do business.

However, there may be some value to just accepting the stereotyping for the moment and proceeding with the discussion to see where it takes us and what we can learn in the process… so, shall we proceed?

Publisher Financial Advantage

Sure, the publisher has the money. And lots of it. And the developer needs the money to make the game and build their studio. What possible leverage can the developer have in a situation like that?

Well if you look at it like that, it may actually make sense to take whatever deal the publisher offers and just “take your beating like a man.” But, I don’t think so.

Step back a little and consider what it is that the publisher sells… games. And what does the developer have that the publisher does not?

A game. And all the money in the world is useless to a publisher if they have no games to sell — unless they want to open up a bank.

Oh yes, they want and need your game. If they didn’t, they would not be talking to you. The old Steve Miller song, “Your Cash Ain’t Nothin’ but Trash” comes to mind.

So, while the developer may desperately need to dollars, the publisher needs the games. I sense the makings of a mutually beneficial business relationship.

Risk Aversion and a Clever Diversion

Publishers, as businesspeople, focus a great deal of attention on risk avoidance. They sometimes even use it as an excuse to convince developers to accept terms in a deal that are, in reality, unnecessary or overreaching.

In a deal with a developer the easiest way for the publisher to minimize risk is to put as much risk as possible on the developer. So, back-end loaded budgets, long payment procedures and the necessity of the publisher owning the IP is standard “policy” for many publishers.

Well, as a professional negotiator, I’ll tell you what I hear when someone says “it’s policy” or “it’s the standard deal in the industry.” I hear nothing.

If the publisher cannot provide a realistic logic-based justification for an adverse contract provision, make them or don’t agree to it. And if the best they can come up with is “reduction of our risk” be extremely skeptical.

I recently ran into a really clever ploy by publishers. In order to overcome the objection to IP assignment for original IP games, instead of demanding the IP ownership in the deal, publishers are now allowing the developers to retain IP ownership until after the game is released.

However, the publisher retains an option to buy out the IP (and in the process the developer’s rights to a back-end royalty in the process) if the game performs above a certain level.

What level, you ask? Well, it is inevitably some time before the advance recoup point when back-end royalties would normally kick in if the game is a hit! You really have to admire their guile.

If the game sucks, the developer can keep the IP. But if the game is a hit, the publisher owns it and the developer gets screwed out of any back-end royalties in the process!

More Developers than Deals

There is certainly a perception that there are more developers and games than there are available deals. There certainly are.

However, that does not apply to the right game at the right time. Each game is in many ways unique and if you are lucky enough to garner the interest of a publisher you can rest assured that they believe that your game will succeed.

It could be unique gameplay, your team’s reputation in the industry or filling the right slot in the publisher’s portfolio strategy. But regardless of why they want your game, once you pass that threshold, you no longer have one of the many games in the marketplace, you have the game that the publisher desires.

And, as I already stated, getting the right games to publish is the whole point of the exercise for the publisher in order to insure their ongoing success.

Long-Term Vision

So, what does having a long-term vision for your studio have to do with your negotiations? Initially, the impression the studio makes on the publisher can make a significant impact on the course of the negotiations.

Conveying a coherent vision can instill a sense of competence in the mind of your contact at the publisher — that the developers are serious-minded about the long term success of their business, not just their current game. This level of respect will usually have a positive impact on the process.

Also, having a long term vision for the studio can impact the sort of deal that will ultimately be acceptable to the studio.

After all, taking a deal that does not provide sufficient revenue for the studio to survive the development process and stay healthy in the post-release period is important, especially if the long term goal is to build a great studio, not just to make a great game — which should be the long-term goal of every studio.

The Negotiation Process

A negotiation for a deal is a process, not an event. Developers too often look at the initial offer as the end, not the beginning, of the process. But think about it. Would you expect the initial offer to be the best deal? Certainly not.

In fact, the initial offer is usually the best deal that the publisher thinks they can get. But it is sure not the best deal the developer can secure. In fact, it is often a bad deal for the studio.

Of course, it is gratifying to get any offer, any offer, to get your game made. And it is usually the result of a long period of effort by the developer to get a deal.

But that alone does not make but it a deal with taking. After all, sometimes the best alternative to a negotiated deal is no deal at all.

Naturally, getting a deal is the point. But some extra time, thought and perseverance can make a significant impact on the result.

And don’t think that you are going to offend the publisher by working them a little. They negotiate deals all the time — much more than developers do. They will generally look at it as an expected course of action.

My initial response to a first offer is to respond with the studio’s best possible deal. After all, the publisher just probably sent the studio the publisher’s dream deal — so a similar response is appropriate.

This is especially true if the publisher’s offer is extremely exploitive of their perceived superior bargaining position. And they may just be in the habit of getting everything that they ask for.

But remember that the initial offer will usually remain there. So, the studio really has nothing to lose by testing the publisher’s resistance in the process and making a counteroffer that includes everything that the developer wants and needs.

And in the process don’t worry too much about what the publisher will ultimately accept. Let them decide how much they are willing to give. That’s their job, not yours.

So if you find yourself holding out on asking for something because you don’t think that the publisher will agree to it, don’t. Let them negotiate their position. You negotiate yours. And if they are in a position to deal, you can rest assure that they are quite good at knowing what they want.

Exploitation

Developers build games and publishers exploit them. That should mean that publishers exploit the games, not that publishers exploit the developers. What every developer should want in a developer-publisher partnership with someone who is really great at exploiting their game.

After all, the commercial exploitation of the game is where the money comes from. And few, if any, developers are really good at exploiting their own work. But then, few, if any publishers are really good at making games. That’s why they keep buying studios.

And it is also may be why so many studios tank after they get purchased by publishers. So long as the negotiation takes this fact into account, it is truly a win-win situation for everyone.

Make a Great Deal for a Great Game

It takes a huge amount of time and effort to make a great game. And it also takes some serious time and effort to make a great deal. And by that I mean a deal where everyone wins, both the publisher and the developer.

So, put the same degree of focus energy and time into the deal they you do into the game and who knows… you may build that great studio in the process.

Til next time, GL & HF!

Tom B

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