When I sat on a video call a few days ago with an indie developer who had just signed his first publishing contract, it reminded me of my own beginnings in the games industry. I know the mixture of excitement and uncertainty in his eyes all too well – both as a lawyer and as an entrepreneur. Today, I’d like to guide you through the publishing jungle and share some of the key learnings from over two decades of experience with international publishing contracts.
The first publishing contract – a double-edged sword
Let me start with a story from my practice: A talented indie studio had developed their first game – an innovative mix of roguelike and build-up strategy. When a well-known publisher showed interest, they were overjoyed. The first draft of the contract looked good at first glance. But as is so often the case, the devil was in the detail. What I see again and again in my day-to-day work is that many indie developers initially only focus on the obvious points such as revenue share and marketing budget. However, there are often completely different aspects that can become real problems later on:
IP rights and trademark use
This is a particularly important topic where I have been able to save many developers from costly mistakes. An example from my law firm: A studio had not realized that the publishing contract also transferred the rights to all characters and the game world to the publisher. When they later wanted to develop a spin-off, they practically had to license their own creations. What you should definitely consider:
– Clear distinction between publishing rights and IP ownership
– Detailed regulations on brand usage
– Clear agreements on merchandising rights
– Regulations for sequels and spin-offs
The update trap
A situation that I recently encountered again: an indie studio had contractually agreed to deliver “regular updates”. What initially sounded harmless became a problem when the publisher began to demand monthly content updates – without additional remuneration. My recommendation therefore: – Define precisely what is meant by “updates”
– Determine the scope and frequency of updates
– Regulate the remuneration for post-launch content
– Plan resources for the post-release phase
The marketing obligations
A topic that I encounter particularly often in my practice: Marketing promises from publishers that later turn out to be castles in the air. Just last week, a developer sat with me whose publisher had promised “extensive marketing measures” but had not specified them. The result? A few social media posts and a hidden mention in the newsletter. My specific recommendations in this regard:
– Have marketing budgets specifically defined
– Define minimum marketing activities
– Agree reporting obligations on measures implemented
– Ensure you have a say in the marketing direction
Localization and cultural adaptation
An often underestimated aspect that I have advised many developers on: Localization goes far beyond simple translations. An example from my practice: The content of a story-based indie game had to be heavily adapted for the Asian market, which resulted in considerable additional costs – costs that were not included in the publishing contract. Important points for contractual regulation:
– Clear definition of target markets
– Determination of responsibility for localization costs
– Regulations for cultural adaptation
– Coordination processes for market-specific changes
The exit plan
As an entrepreneur and long-standing consultant in the games industry, I know that sometimes even unpleasant scenarios need to be thought through. Especially in the current market situation, where even established publishers can get into difficulties, a solid exit plan in the publishing contract is worth its weight in gold. An example from my law firm illustrates this particularly well: a promising indie studio had concluded a publishing deal with a medium-sized publisher. When the publisher got into financial difficulties, the entire project was in danger of failing. Thanks to the contractual clauses we implemented, the studio was not only able to get the rights back without any problems, but was also able to continue using marketing materials and important contacts to platforms. What many developers don’t consider is that an exit plan doesn’t just have to cover financial emergencies. In my practice, I regularly see cases where creative differences, shifted business strategies or even simple neglect by the publisher become a problem. The gaming industry is fast-moving, and what appears to be a solid partnership today may face unexpected challenges tomorrow. The importance of well thought-out exit strategies is particularly evident in international publishing contracts. A solid exit plan should therefore include at least the following points:
– Clear trigger events for exit rights
– Precise definition of reverting rights
– Provisions for the handover of marketing materials and contacts
– Determination of financial compensation payments
– Transitional provisions for ongoing campaigns
– Protection against subsequent recourse claims
Practical tips for the negotiation
After more than 20 years of experience in the games industry, here are my most important negotiating tips: 1. do your homework
– research the publisher thoroughly
– talk to other developers
– check the market performance of comparable games
– analyze the publishing pipeline 2. define your boundaries
– what are your “deal breakers”?
– what rights do you need to keep?
– how much creative control do you need?
– what minimum financial terms are necessary? 3. plan for the long term
– Think about future platforms
– Consider potential sequels
– Plan for merchandise rights
– Keep an eye on new monetization opportunities
Conclusion
As a lawyer who comes from the gaming scene myself, I can only emphasize this: A publishing agreement is not an annoying formality, but the foundation of your collaboration with the publisher. It should protect both your creative and commercial interests without losing sight of practical feasibility. Do you need help negotiating your publishing agreement? As a lawyer with my own gaming experience, I understand not only the legal side, but also your vision as a developer. Let’s work together to make sure your game gets the success it deserves.
