Hey #indiedev #gamedev, I turned down a pretty big publishing contract today for about half a million in total investment (I'm a solo dev). They genuinely wanted to work with me, but couldn't see what was exploitative about the terms. I'm not under an NDA, wanna talk about it? ๐Ÿ‘€
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Note that though nothing legally stops me, I'm not going to be naming the publisher - just imagine any indie PC/console publisher. It's the industry that's failing devs, not any one company.
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So, everyone knows a business will protect its own interests, that's fine. I wouldn't expect someone to invest 6 figures in me without heavily mitigating risk. But the degree of control extended far past that, with insane breach penalizations for me - and zero for them.
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Let's start with the heaviest stuff: If the business invokes the breach of contract clause, here's what happens: - They keep the right to sell the game, and I lose my royalty (so, they keep 100% of revenue) - I pay them back all money ever given to me, and...
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- I also pay them *all development costs yet to come* for them to finish the game without me, with no limit to what that budget or cost is. So, here's me, a 30-year-old solo dev, facing a consequence where if my game is be taken away from me I'm also *in debt*.
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The debt would be anywhere from 1/4 to 1/2 a million dollars, and with no option for further income. Likely any funds I'd already received would be spent on cost of living, and I... don't *have* money like that, you know? So if this happens I'm in debt, *forever*.
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This breach is *really easy* to trigger. I would never expect a producer to call for it - but if the business has a choice between paying for a game and getting >50% of revenue plus its money (eventually) back, or *not* paying for a game and getting 100% of revenue...

5:02 PM ยท Aug 13, 2021

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Obviously one is more blatantly self-benefitting, and even if unlikely, I can't accept that massive risk without protection against someone at the top deciding to cut me loose one day. All it takes is one misstep to have cause to invoke.
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(Notably, milestone builds could take 30-60 or more days to approve - but you can technically be read as in breach if it's not approved 30 days past the due date, so there's comfortable room for a breach to be claimed on a technicality.)
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Oh, what happens if *they* breach contract you ask? I get to keep my game :-) Isn't that nice? :-) Good luck proving it anyway: All publisher responsibilities total maybe 5 vague sentences that they must only try their "reasonable best" to do... any part of their entire job.
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How about rev share? 50%/50% was on the high side for the funding I was seeking (5 figures, not 6), but still would've been very profitable for me. Except, pre-recoupment (ie. until they've been repaid about a quarter-mil), the terms are *100%/0%*.
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Again: You will be due literally zero residual income from the moment the final build is approved until after around *24,000 copies* are sold. And when I say "due" income by then, I don't mean that you'll be *receiving* it any time soon.
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They don't have to start paying you your share until *30 days after the end of the QUARTER*, ie. up to 4 months past when it's *due*, and can withold "expected returns" up to 3 months more. Keep in mind, there's also no legal obligation to show you any financial records.
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Oh yeah - and your (eventual) share is also expected to cover all global sales tax. Why would *that* be a burden the party responsible for handling sales covers?
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I'm an individual and they're a corporation - letting me earn literally any money pre-recoup doesn't affect the eventual full recoupment or hurt them in any way, at all, either as a business or as individuals.
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Catch them underpaying you? There's no penalty clause (you're repaid only what was withheld), and you're going to pay for that auditor even if you DO prove fraud. For the Nth time, the exploitation is not just penalty-free but also PROFITABLE if I don't opt to gamble that cost.
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Have a disagreement over being told to add advertising systems to your game, or over changing/adding content you don't agree with? Guess what - they can have a 3rd-party dev it anyway, and you're paying for it. (Also no defined budget/cost limit on this, as before)
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When I voiced heavy concerns with the contract, they were surprised. Like, very honestly surprised. Again, I don't think they *meant* harm or to exploit. But predatory behaviour has been normalized in the industry. I guess it just doesn't stand out anymore.
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They responded by asserting the contract *couldn't* be exploitative b/c top lawyers in the industry wrote it ๐Ÿ™„ and b/c other devs have signed it. The fact that they still easily sign devs on this is a poor reflection on the industry, not a vote in favour of the practice.
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Important context: They approached *me*. I wasn't looking for a publisher, and already had enough (barely, but enough) Kickstarter funds to go without them. These were the terms offered with literally as much leverage as someone in my in my position can have.
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If you're reading this hoping to find a publisher to take your small project to the next level: Get the contract. READ the contract. Skip to the terms of termination and check what happens if something goes wrong.
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Check how often and how quickly you get paid, and what visibility you have into the accounting process. Check how disagreements are resolved, and what triggers penalization. Check that they actually have to launch your game. CHECK.
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No matter what you're told conversationally, and regardless of if the people you're speaking with mean well (which they probably do), the legal terms are the ONLY guarantees you have as to how the business has to treat you - and a business will never put you first in a pinch.
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You are a person. They are a business. Don't capitulate and don't indebt yourself. Me, I'm going to make the damn game anyways, you know? Be good to each other. Thanks for reading.
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Some follow-up - can't reply to all comments anymore.
No idea how to respond to all the positive support. Thank you #indiedev. I'm really glad this has sparked more conversation, and to to see a lot of comments from devs saying they'll approach publisher contracts a lot more cautiously now. Some questions/answers/thoughts ITT:
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