Sheridans' Tim Repa-Davies: "Publishers and investors are not out to trip up developers, but..."

As part of WN Dev Contest, we are discussing the industry with the jury members. In this installment, we catch up with Tim Repa-Davies, games lawyer at media and technology law firm Sheridans.

Tim’s primary focus is on assisting independent game developers navigate the various commercial and legal issues that come with running an early stage games business, as well as providing specialist media finance advice concerning games development funding and video games tax credits.

Tim Repa-Davies
Games Lawyer, Sheridans

WN Dev Contest is a competition for Unreal Engine game developers. It’s held by WN Media Group in collaboration with Unreal Engine and Reboot Develop.

GWO: Tim, would you say developers need to hire a lawyer before signing with a publisher?

Tim: As a lawyer I am going to be biased in my answer — but absolutely yes!  However, not all lawyers are created equal.  If, for example, you are wanting someone to look over your publishing contract, Epic exclusivity agreement or Xbox Game Pass deal then having a lawyer that knows the games industry is a must.

A good lawyer needs to be someone you can trust, and feel comfortable in contacting at any time to discuss the opportunities and challenges that your studio is facing. 

Are there any clauses in agreements with publishers and investors that developers tend to overlook when in fact they should consider them very carefully?

Generally speaking, publishers and investors are not out to trip up developers, but they are businesses that are looking to make a profit.  As such a publisher or investor’s publishing/funding terms are invariably going to be in the publisher/investor’s favour.  As a developer you have every right to negotiate your publishing contract. After all, a publisher wants to make money off you and your game!

We are currently writing a series of articles titled “Contract Killers” that contest entrants can read here. This series of posts looks at those red flags in any publishing agreement that could cause issues as a studio looks to develop and launch its game.

A couple of key things to consider would be:

• Does the contract include extensions of time to account for publisher-caused delays?  If not, add those in.  A developer shouldn’t be penalised if it is waiting for approval or sign off from a publisher.

• How much is your publisher costing you? Do you know what costs and amounts the publisher is going to deduct from sales revenue to cover their publishing activities?  If not, ask!  In most cases the developer will not receive any royalty or back-end payments until the publisher has recovered all of the costs that it has incurred in publishing your game.

Developers are often concerned that somebody might steal their idea or concept. Does it happen a lot?

This probably happens less than people might think, but there is nothing wrong with a developer being cautious. Having NDAs or other written agreements in place with publishing partners, freelancers and other outsourcers is certainly a must as that can help preserve confidentiality in a game concept or idea.

An issue that is more common is a developer not having written agreements in place with any freelancer contributors that work on their game — such as artists, animators, composers or programmers.  In most territories around the world the intellectual property rights in the end product of a freelancer’s work will only transfer if there is a written agreement in place confirming that the development studio gets the IP rights in that work.  This is the case even if you as the developer have paid the freelancer for that work. So, having a solid freelancer agreement can save you a lot of heartache down the line.

But what if developers are actually not ok with the publishers’s actions? What would you say are the main mistakes devs can make in this situation?

Not speaking with their publisher first. Any publishing relationship is a commercial partnership built on mutual trust. If you are unhappy with a publisher’s actions then it is reasonable for you to raise these issues with the publisher first to understand their rationale, and maybe come to a compromise. Do not air your grievances in public first! It can be tempting to send a quick Tweet or post that criticises your publishers actions – but this may put you in breach of contract and will certainly damage relationships.  The games industry is small and publishers talk to each other so being respectful and reasonable can go a long way even if you ultimately disagree with a publishers actions.