Following is part two of William Latham's column that appeared in the United Kingdom's game industry publication, Develop.
Publishers profit from developers' IP
Independent game developers without their own IP are service
companies, not creative ones, argues William Latham...
In my August column, I outlined the typical path taken to exploit an
original IP by an independent developer. We saw how the developer -
after funding and delivering the expensive 'Vertical Slice' demanded by
the publisher and under huge cash flow pressure - gave all its IP
rights to the publisher just to finally get the contract signed.
In that moment, the developer's role has changed from being the next
potential JK Rowling to being no different to Pronto Print. It is now a
service company. Following the traditional celebratory booze-up down
the pub, the studio's CEO looks more closely at the contract that they
have just signed and realizes that three milestone rejections under the
subjective 'marketing sign off clause' means in essence that the
project can be moved in-house by the publisher, and the developer
cannot do anything about it. (This clause is standard, incidentally,
and it instantly bypasses any publisher obligation to respect the
contractual game specification and milestone schedule.)
Soon the developer also notices that its publisher's producer has
become a little Hitler, mucking around with the game based on their own
half baked ideas. And then the publisher says it wants complete
monthly source code builds, and then publisher's press department
stalls on getting the product announcement press release through the
door...
Three months go on and the CEO at the publisher says they don't like
the direction the game has taken, unaware that it's the publisher's
producer that taken it in this direction. And the developer cannot
'blow out' the publisher's producer, because as a personal favor he is
getting the milestone payments through the system as quickly as
possible.
And so the descent continues, milestones fail and eventually the
product is canned.
Now here are some nasty additions: in a scenario where the development
is actually going well (and set to lead to success for the developer),
it may actually be in the larger publisher's best interests to move
this important IP to its in-house factory as quickly as possible, to
reduce risk and significantly increase confidence in hitting the
release date. In any event, the developer's risk remains very high,
because it is still carrying a lot of debt from funding the Vertical
Slice and funding the large team during the lengthy negotiation period.
On top of all this, in handing over its IP, the developer has
significantly reduced its chances of getting any investment from VCs or
external investors - the one thing that might reduce risk in the
publisher's eyes and justify the developer keeping the product!
Where will this end? Big publisher's internal development teams need
good IP. Publishers could start to look at independent developers
merely as a source of original IP to feed their internal teams, and use
full publishing contracts merely to extract the IP and then dump the
developer. A pessimistic line, sure, but we must be getting close to
this. Some publishers already kill healthy titles in external
development to free up extra money to spend marketing a hit title, and
some financial directors will save hundreds of thousands of dollars by
deliberately rejecting milestones (irrelevant of quality) just prior to
the company year-end to boost the year-end position.
The point is that even if the extraction of an IP from a developer is
not deliberately used (it would, after all, probably viewed as
unethical), the 'subjective marketing sign off clause' mentioned at the
start of the column gives the publisher huge flexibility, and does not
really encourage it to make the business relationship work with the
developer. With this Sword of Damocles hanging over it, on top of its
risky financial situation, the developer is unlikely to give its best.
To conclude, the developer/publisher business model is broken,
publisher 'over-negotiation' is common, and management of its external
producers is often very poor. Finally, independent developers continue
to be very commercially naive as to just how far the odds are stacked
against them, and how much risk they take on. Risk which in the end can
finish them off.
Owning/controlling IP is the ultimate road to success in this industry, which is why the publishers have gotten so good at it. But, for the health of the industry, we need more financially strong independent studios, capable of following their own creative whims, and willing to make original games. Our industry benefits tremendous from originality and building our own identity. It's no coincidence that most of the industry's strongest non-sports brands were invented here, and are not Hollywood hand-me-downs. Games like Halo, The Sims, Diablo, Metal Gear Sold, Final Fantasy, Warcraft, Doom, Metroid, Max Payne, Age of Empires, Tomb Raider, Zelda, Tetris, EverQuest, Command & Conquer, Ratchet & Clank, Fable, Resident Evil, Mario, Half-Life and Grand Theft Auto.
We'd see more original games, I'm positive, if we had more financially successful studios, who, unlike publishers, do not have shareholders and Wall Street to kneel to, demanding every quarter to bring in more revenue that the previous year's same quarter. This system results in games that are rushed out to meet arbitrary end-of-quarter dates.
Another issue is that the industry is better off when the accumulation of wealth doesn't always flow toward the publishers. When it flows in the other direction, then creative mavericks are more likely to develop games that explore more risky terrain. We need more Pixar's in the game industry.
My major frustration with most publishers is that they do not take more chances (though Ubisoft has impressed me in the last year). But the reason is clear: Publishers haven't a clue how to develop successful brands, and thus their failure rate is so high they believe it's near impossible, and mostly dumb luck when it happens.
While I know that in many situations publishers can do an excellent job with existing IP, and occasionally even inventing new IP, the industry is better off if independent studios have a lot of say in the matter, too. And currently, the power shift has swung too far in the publisher's direction, and too many studios are pawns, rather than kings.
Bottom-line: Owning IP is the single most important factor in determining who's a king.
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