Who Owns The Tools Of The Trade?

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Let’s start with the basics. Under a typical game development contract, a publisher furnishes the funds required to develop a game to a game developer. Understandably, access to these funds is subject to certain restrictions, expectations and other contractual obligations. Invariably, there is a provision dedicated to the handling of the rights to intellectual property created pursuant to the terms of the agreement.

Now this is where it gets tricky. How are these rights handled? If the funds are coming from a publisher, the developer can expect to see the phrase "Work Made for Hire" or some other language allocating the intellectual property rights for works created pursuant to the contract to appear somewhere in the agreement. This provision typically specifies that the intellectual property created by the developer will belong to the publisher if it falls within certain parameters (often anything "related to" the project or falling under a list of defined terms).

Certain traditions are observed in video game contracts. The game (which normally includes the finished product, the source code, and all of the rights to exploit the underlying intellectual property) will be spoils of war for the publisher. The developer may rejoice and pour numerous libations in celebration of the fact that it has probably retained rights to the tools of the trade such as the game engine and internally created development tools.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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