Game development Publishing agreements source of revenue and determining The balance of rights obtained who controls them is often hotly by the publisher vs rights retained negotiated. by the developer will typically be A game developer is likely to be determined by the relative bargaining careful about agreeing to any kind power of the parties or, where dealing of exclusivity option. Where agreed, with a more sophisticated or hyped exclusivity wording should be treated developer, how much the publisher with caution by both parties and is willing to pay. drafted so it doesn’t unreasonably Marketing restrict the developer and avoids triggering any competition law issues. One of the key things that publishers More likely to be agreeable to both should bring to the table is marketing sides is a right of either first refusal, expertise and capability. The first negotiation, or first offer on these publisher agreement may require elements of a game for the publisher, the publisher to provide marketing following which, if not sufficiently services, setting out clear obligations attractive, the developer can take and requiring that such activities their game elsewhere. are in compliance with applicable regulations, particularly in relation Third party rights to higher risk areas such as the use On the other hand, games may of influencers, promotion of DLC, well feature third party rights, such gambling and in-app purchases. as music, characters or artwork, or Appropriate marketing support they may be based on another work should be sought from the developer, such as a book or a film or even such as PR input and support with the another game. The responsibility development of marketing collateral, for licensing and clearing these including any necessary approvals. rights must also be dealt with in A licence to any trade marks or other the publisher agreement. branding and related marketing materials should be obtained from the developer to ensure the publisher is able to properly carry out its marketing obligations. 43