Why do you know about publishing contracts?
I’ve had over 30 contracts across my desk over the last 5 years since CODE started funding studios, besides all those negotiations involving studios I’ve invested in or advised.
The other thing that’s key - I’ve had to go back and read some of them again. I know right? Weird. Contracts are signed and never looked at again until things go wrong, or things go very right. Both have happened to me.
Termination without cause
“We can terminate this contract at any time by giving you a month’s notice”
I hate this kind of clause and to add insult to injury, it’s rarely accompanied by a mirror clause giving you as developer the right to terminate the contract in the same way.
This is particularly invidious for ‘marketing only’ deals. Basically the publisher can announce your game, push around a trailer and screenshots, see what traction they get, and then dump you unceremoniously at the altar a couple of months prior to release, leaving you no time to pick up the pieces yourself.
Why do publishers insert these clauses?
In negotiations to remove these clauses, it nearly always comes out there has been a situation the publisher has found themselves in some time in the past where they couldn’t terminate a contract because the reason they needed to terminate wasn’t listed. The developer wouldn’t reply to emails for weeks on end, or posted something hideous on social media and refused to back down. Good publishers want to protect themselves from these sorts of things.
But sometimes, it’s there to give the publisher to pull the ripcord and parachute out of a deal they simply can’t be arsed to work on.
What the right negotiating technique to get these clauses removed?
Ask them to explain why they feel the need for the clause to be there - what are they trying to protect themselves from? The answer generally will be reasonable enough. Then suggest they simply add the specific protections they want into the contract as an obligation on you, the developer, and refer to it as a justifiable reason for termination in the appropriate clause.
It’s pretty hard for them to argue that this is an unfair approach, when it is patently unfair to have a one-way ‘no cause’ termination.
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