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Publishers Onselling

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Joined: 07/28/2022

Hi. Hoping someone can advise on the following. If our game is taken on by a small publisher, can they, do they, and what happens if they do, want to pass it on to other publishers? Where are our rights to the game if that were to happen?

Thanks in advance. Warren

questccg's picture
Joined: 04/16/2011
Usually you have a REVERT Clause in your contract...

Like after 1-Year of NO SALES, the RIGHTS of the game go back to the "Designer". Usually a Publisher will NOT resell to another Publisher because they LOSE their lion-share in the profits. Obviously you have signed over the game to the Publisher and have a CONTRACT (with some details) such as a Royalty or an Advance or some form of profit sharing which is still ENFORCEABLE with them (your initial Publisher)...

If THEY signed over their rights, it doesn't mean that YOUR END of the deal is DEAD. No it just means that the NEW Publisher needs to ensure that your previous Publisher can honor your side of the deal and that means the NEW Publisher needs to abide by rules set in your contract.

Like if you get 5% MSRP on all sales (with the previous Publisher) that means that the NEW Publisher needs to honor that agreement in such a way that the previous Publisher pays you your royalty given whatever agreement the two (2) Publishers have with each other.

But I'm not a LAWYER (best to consult a professional...) And the laws may be different from where you are and I am (I'm Canadian...) So if you are in the USA, I would consult a LOCAL lawyer. May cost you like $200 - $500 USD for a consultation and review of your contract... 1 to 2 hours including an in-person meeting sounds about right.

Just because the previous Publisher is transferring rights to SOMEONE ELSE, doesn't mean that they are NOT LIABLE to YOU. I think that's the bottom line.

Also if you feel like the deal isn't in YOUR best interest... IDK for whatever reasons... Maybe you don't like the NEW Publisher or don't like the games they publish (IDK ... whatever the reason) ... I believe you do have some RIGHTS in say ... Because you have some kind of "stake" in legal terms. Like if you feel like this NEW Publisher will not be able to produce 1,000 copies of the game allowing you to earn and keep your 5% royalty ... I think that is also something you can discuss with a LAWYER.


Note #1: About the deal NOT being in YOUR best interest... I would STRONGLY urge you to consult a LAWYER. For a third-party to be included in the details of a sale of rights, you need to prove your side of the deal. What I mean is if you have some kind of "stake" (like a royalty or rights reversal, etc.) or anything that gives you some form of SAY in the original contract, I believe this gives you a SEAT at the BARGAINING TABLE with the NEW Publisher.

I'm not sure if this is true where you live and the local versus federal laws, etc.

The idea is to SHOW you have certain RIGHTS with regards to the product IN THE CONTRACT with the existing Publisher... And that you would want to ensure that those rights are protected in a contract with a NEW Publisher (call them the third-party).

Again, I'm not a LAWYER ... Feel free to consult someone who knows more about IP LAWS and LICENSING CONTRACTS.

Note #2: Also please note there MAY be some wording or clause in your existing CONTRACT which "counters" your rights. Like that CATCH-ALL in legal contracts which says something like: "If one or more of the clauses in this contract cannot be enforced, the remainder of the clauses remain in full force and the rest of the contract is considered in-tact." Something like that... A lot of people think this is a necessary clause and just forget that there could be legal ramifications further down-the-road.

This (I believe) can be used to null-and-void some of YOUR rights (contractually) when there are disputes. Like say someone promised to give you an advance of $1,500 USD and then they DON'T follow-thru ... It doesn't mean you can sue them for the owed monies. No that can be a clause which was removed from the contract and the remainder of the contract is still VALID.

Again please consult a LAYWER in your LOCAL vicinity.

I personally believe you should have a SAY in the NEW 3rd-Party contract... But I don't think you can PREVENT it. You can ONLY protect your own interests based on the contract that you had with the initial Publisher.

So, those are just some finer details to look for and be wary of. It's a learning process and hopefully you don't LOSE OUT.

Note #3: If there are some PERFORMANCE clauses which talk about RIGHTS, IP and OWNERSHIP... That too can be used in conjunction with a NEW Publisher. What do I mean by PERFORMANCE clauses???

Things like: "We will based this contract on a sale of 1,000 initial units." Meaning some kind of DUTIES or RESPONSIBILITIES in SALES/VOLUME (eg. Performance) that also can be used as another reason to be included with the negotiations with a NEW Publisher.

So if your existing Publisher promised to deliver on some kind of volume, that is another clause which show YOUR INCENTIVE and RIGHTS in the contract (Stake).

What I am unsure about is when drafting the NEW contract with this NEW Publisher... If they CAN'T promise any MINIMUM volume you are a bit stuck. Like I said, I don't think you can STOP IT... Just ensure that your end of the contract is observed.

Note #4: I also believe there is a "Good Faith" clause in these types of arrangements. Meaning all parties will exercise their side of contract honestly and fairly so as not to destroy the rights of the other parties... Again subject to YOUR particular contract (Honest Dealings).

TBH I don't even think I can enforce such a cross-border clause in my OWN contract! I'm really not sure... Sorry. I brought this up because normally licensing contracts are supposed to have such a clause (legally even if it is NOT present in the contract).

Basically the LAW prevents people fncking people over. Granted there are ways around it also... Legalese and doing things that are outside the agreement.

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