Step 30: Board Game Contract Negotiating, Part 3 of 3: Rights

We’ve discussed the money side of negotiating a board game contract, but there is more than just money that has to be negotiated. Let’s take a closer look at how to negotiate the rights to your game.
Game Changes: Ensure that the contract specifies who has final say over any changes made with your game. If it’s the publisher then ensure you have a exit clause that allows you to cancel the contract if they have changed your game so much that you don’t want your name on it anymore. If you’re a new designer then you probably won’t be able to negotiate this, but at least ask about how much input you’ll be allowed to give on any changes. Most of the time the publishers will keep you in the loop on any changes and often even ask for your thoughts or feedback on them.
Return of Rights: You’re going to need to ensure that there is a clause in the contract about how you can get the rights back to your game. When you sign the contract you’re signing over the rights to the game which means you don’t own it any more. A common practice is that if there are no more print runs after a 2-3 year period of time, then you get the rights back. This means you can pitch it to another company. While that might seem silly because that means it wasn’t selling that well, there are many cases of games that just didn’t have the right marketing to raise awareness and have failed, only to be picked up by another publisher and succeed. Every year there are many examples of games that are reprints of games that have previously been published.
One designer stipulated on his contract that if his annual revenue from this game falls below $X then he regains the rights to the game. This is interesting as it encourages the publisher to advertise the game and work a bit harder to ensure it’s bringing in the required revenue.

Foreign rights: Do you want the publisher to have worldwide rights to your game? That depends. Have they distributed games to the rest of the world before? If not, then maybe it’s best if you kept those rights. That way you can pitch the game to foreign publishers even while it’s selling on the shelves of your local store. Ask the publisher what their plans are with worldwide rights. If they don’t know or won’t commit then try to retain those rights.
If they do retain foreign rights then there should be a separate rate. What happens is that a foreign publisher will express interest in publishing the game in a different country (and often a different language). They will make a deal with the publisher if you’ve given them foreign rights. Your original publisher might get 10% of the game’s sales (distributor cost again – not retail price!) which means if you don’t negotiate correctly then you could end up getting 7% of that 10% – which is peanuts. It’s not uncommon to state that if a foreign publisher publishes the game then as the designer you get 25-50% of what your original publisher gets.
Of course if you retain foreign rights then you get 100% – but it means you have to do more of the legwork and put your salesperson hat back on.
Digital rights: More and more games are turning into apps and online versions. Has your publisher published anything digitally yet? Do they know that aspect of the business? If they do, then it’s still wise to ask what their plans would entail if the board game were deemed to be successful. If they aren’t experienced in that realm, then it’s possible that you should ask to retain those rights. It might be tougher nowadays to retain these rights as app-based gaming can be quite profitable and publishers are wary to waive those rights, even if they are inexperienced in that field.

-Jay Cormier

As with any contract, be careful to read it in full and get clarification on anything that you don’t understand. If you need to get a lawyer to look it over, that may be a good idea – just remember that not all lawyers know all the ins and outs of intellectual property law. And neither do we, so take all of our advice with a grain of salt!

One other thing that exists in the boardgame world is the right to have first crack at making an expansion to a game. You should strongly consider having a clause written to protect you from being cut out of the loop on your own game should it be a hit and the fans are clamoring for more. It only makes sense from a designer’s point of view, but just because it’s common sense doesn’t mean it will be in your contract and you want to ensure that the publisher is contractually obligated to seek your design services first should they ever want to publish an expansion or supplemental goods for the game.

You can also have your rights return to you at different times for different reasons. For example, a designer we know has a contract that gives his publishers rights to the intellectual property in Europe for a set period of time. During that time, they have exclusive rights to publish his game in Europe. They also have the rights to publish or co-publish outside of Europe, but each area is treated separately and each has it’s own timeline. So, it may be that the rights for Europe and North America are set at 5 years but Asia and Africa have to be acted upon within 1 year of signing the contract. Once that year is up, if the publisher hasn’t found a co-publisher in Asia, then the rights to the game return to the designer, but only for Asia and Africa and he is free to seek out publishing opportunities in those areas of the world.

For some game publishers, there is likely no way you will get your name on the cover. Most small boutique companies want to entice gamers with the notoriety and reputation of the game’s designer as their brand may not be big enough to garner attention yet. Others, like Hasbro or Mattel, won’t allow the designer to have their name grace the cover. This should be something you put into your contract if it is important to you.

Most of the rest of the issues can be negotiated outside of a contract (e.g. can you put the names of your playtesters in the rules, etc.) but the majority of the most important rights to consider are above. If you can think of any more, let us know!

-Sen-Foong Lim