Publisher negotiations for game studios
We will work out what your position actually rests on, price the offer in rights rather than in the advance, and write down what was agreed before anyone drafts a contract.
When you need help negotiating with a publisher
A publisher made the first offer
Numbers arrived in a message, and they sound generous next to your current bank balance. What they cost is written in the parts of the offer that carry no numbers at all.
You are talking to several publishers
Two or three conversations are running and each one asks what the others offered. How you answer that decides whether you keep the only real advantage you have.
They want everything, everywhere
The ask covers all platforms, all languages, all future games. Handing over the parts nobody has plans for is how a studio pays for a deal twice over.
The money is one number
An advance is named and the rest is described in words. What that number is measured against, and what is taken out before it is counted, is the whole of the deal.
They asked for the source code
The request arrives late and framed as routine, for continuity or for safety. Whether it leaves your hands, and on what condition, is a decision and not a formality.
The build is done, money is short
The team is on its last month and there is one offer on the table. A deadline you cannot move is the thing the other side is negotiating against.
What you get
- A position you can hold
- The list of what to trade
- Terms written down before signing
- A plan if talks fail
What is required to negotiate with a publisher
A negotiation is decided before the drafting starts, by two things: what you can prove you own, and whether you have somewhere else to go. Everything else is sequence — which questions you settle first, and which you refuse to answer until the ones before them are closed.
What you settle before talking
- What you own and can show: the chain from every contractor and every outside asset to you.
- What the money is actually for, month by month, so an advance can be measured against it.
- The lowest deal you would still sign — decided while there is no offer in front of you.
- What you would rather not release at all than release on the wrong terms.
What your position rests on
- A slice that plays. A build somebody can hold moves a conversation further than a document describing it.
- A clean chain of rights, because every gap in it becomes a discount.
- More than one conversation, and no obligation to say what happens in the others.
- Money of your own, even a little, because it moves the date you have to sign by.
What is hard to get back
- Ownership of the code and the assets, as against a licence to publish them.
- The next game: an option over a sequel signed away here is priced at today’s value of a studio you have not become yet.
- The store accounts and the relationship with the players, which decide who owns the audience afterwards.
- Approval over your own game handed to one side only.
Ports and localisations are new works
An adaptation is protected as an original work in its own right, without prejudice to the copyright in the work it was made from. So the localisation and the console port a publisher pays for are new objects with their own owner, and the negotiation has to say who that is.
The version that keeps working for you is the one where the underlying work stays yours and the adaptations come back on a named date. What you cannot recover afterwards is a port whose ownership was never mentioned.
How the money is put together
- The advance, and whether it is a payment or a loan against future revenue.
- What comes off the top before your share starts, and in what order.
- The base your share is calculated on, which is the number that decides everything.
- Marketing spend: who decides it, and whether it lands on your side of the recoupment.
- What you may check, how often, and who pays for the check.
If the talks fail
The confidentiality you signed at the start keeps running, and it is worth knowing what it covers before the first meeting and not after the last. We will set out what the other side may keep, what you may say to the next publisher, and what has to come back to you.
What the negotiation produces on paper is a publishing agreement; getting a yes from whoever owns a licensed asset is rights holder negotiations.
Sources: the Berne Convention, article 2(3): translations, adaptations, arrangements of music and other alterations of a work are protected as original works, without prejudice to the copyright in the original work.
Stages of work
Your side of the table — 3–5 working days.
Three things get settled first: what you own and can show, what the money is for, and the lowest deal you would still sign. That last number is decided before an offer is in front of you.
Reading the offer for what it costs.
We will translate the offer into what leaves you and for how long, and put a price on each part of it in terms other than the advance.
The order of the questions.
Rights, term and money get settled before approvals, marketing and reporting. Answering the small questions first is what leaves the big ones to the end, when your position is weakest.
The trade list.
You get two columns: what you would give up and in what order, and what does not move at any price. Both are decided in advance, in writing.
Terms written down before the draft.
What was agreed goes on paper as agreed points, so the drafting starts from your record of the conversation and each change to it has to be explained.
The plan if it does not happen.
We will set out what the other side keeps, what you may tell the next publisher, and what has to come back — before the first meeting, while it is still cheap to ask.
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