Industry Insider: Writing Contracts

So, as with everything on this whole site: I am not a lawyer. This is not legal advice.

And if you are at the stage where you’re writing contracts, you likely could do with some real legal advice. Yes, that costs money. But if you want a contract that’ll actually hold up to a legal challenge, you want a lawyer in your state to have looked at it. Preferably one with some understanding of publishing and trademark and copyright law, if not specifically gaming. Chances are you can find a generic contract online, make changes to it to fit your needs, and take it in for a review for a modest amount of money.

(Or, if you’ve signed some contracts with other companies for game content, you can use that as a template of what to include, though don’t copy the wording whole-cloth without permission.)

Of course heading off legal challenges are far from the only function of contracts. I have found the MOST common (and an extremely useful) purpose they serve is to make the scope and details of the responsibilities of all sides of a deal clear, and to preserve them against bad memories or misunderstandings. More than once, I have discovered at the contract stage that I was supposed to do more than I thought, or get paid less, or give up more rights—or had a freelancer tell me they got a similar surprise when looking over a contract I sent them.

((A note to freelancers: That’s okay, by the way. Until it is signed, a contract is a suggestion. Sure, most big companies won’t change most terms for you… but it’s both worth asking, and worth knowing what you are agreeing to if you go forward with a contract you’re not a huge fan of. And they MAY pay you more, or change a deadline, or make some other accommodation. It should never hurt to ask.

And if asking about the terms of a contract brings some major negative drama? That tells you something about working with those people too.

Also, never work without a contract.

Not even for me. Not even for your friends. (Especially not for your friends!)

If money, rights, intellectual property, work, credit, or anything that has or potentially will have value is exchanging hands or being used by anyone other than its creator, get a contract. It can be short. It can be basic.

But get one before ANY work gets done.

Okay, back to talking to publishers!))

So, with all that forward out of the way, what kind of information should a contract cover?

WHO

Yep, step one is who are the parties in the contract. It’s easiest of that’s two parties, such as a writer and a publisher, but you certainly can have multiple-party contracts. One useful thing I notice in a lot of contracts is that once the two parties are identified, they are then referred to by some other defined term, such as “This agreement is by and between Rogue Genius Games, a Washington company having a principle place of business at _[address]_ (hereafter “RGG”)…”

That’s useful, because you can then just use RGG in the rest of the contract. For contracts you want to use as a template, it also means you can have a place for the freelancer’s name and address, and then say (hereafter “Freelancer”), and not have to change the name everyplace you want to refer to the freelancer later in the contract.

While it’s usually obvious, who a contract is between can be surprisingly complex and important. For example, if I ask someone if they want to write a project for me in a casual conversation, it may get lost if I am asking them as a private individual, as the publisher of Rogue Genius Games, in my role as a developer for one of about three other game companies I work with, or some other role entirely. Any lack of clarity about that is my fault, but a contract makes sure that the person working for me knows who they are working for before they formally agree to do the work.

Also, some freelancers do work through an LLC or other legal entity, rather than as sole proprietors of their doing-business-as under their own name. That’s normally not an issue, but when it comes time to claim expenses or report income, it’s super-helpful if I tell the IRS that Freddy Freelancer earned money, and he wants to report it under Freelancer LLC, that out records line up.

It’s also a good idea to define who is getting what kind of credit, and maybe even where. Is the freelancer going to be listed as the author? A writer? As ‘additional content by’? Listed on the cover/ Not mentioned at all? Not every contract covers this, but they certainly could.

It’s also a good idea to give a name for the project, so everyone knows what you’re talking about. But a lot of contracts I see add “or such other title as [Publisher] shall decide to use,” which is obviously a potentially useful bit of CYA.

WHERE

What laws govern this contract? Your home nation? Home state? Where your LLC is registered? Look into this, and have the contract spell it out.

WHAT

After a contract covers who, it’s time to get to what—what work is being products. Is it writing? If so is it being figured in words? In pages? In what topics are being covered? It’s important to have a clear description of what the contract is covering. If you need a longer outline, it’s okay to note that there is an outline separate from the contract, or one as an “Exhibit A,” or however your lawyer tells you to set it up.

On top of what the end product is supposed to be, it’s worth calling out the expectations and duties of each side. Many contracts require the freelancer to note the material they turn over is original, never-before contracts, used, or bought, and absolutely not licensed or plagiarized material. Mostly, this is about the publisher having a documents stating they bought the material in good faith, believing it did not violate anyone else’s rights. But it also serves as a reminder for newer freelancers who may not realize that just because something is on Wikipedia or a fan page somewhere doesn’t mean it’s available for commercial use.

In addition to describing the work itself, it should describe the rights being transferred. Is it work-for-hire which (probably) means the author isn’t even considered the author for purpose of copyright law. Is it all rights transferred in perpetuity? Is it just first publishing rights? Can the freelancer still use it for purposes of personal promotion (especially important for visual art). Legal terms can have a lot of weight here, but clarity can also just be useful to set expectations among the parties involved.

The more rights the contract transfers, the more it should pay. I’ve done work for a much lower rate because it just granted exclusive right to use it for 90 days, and then I could reuse or resell it (though noting if I did sell it that it wasn’t new content, but previously published work). I’ve save tons of money on art buying things like second-use rights, or only licensing it to my exclusive use for a limited period of time.

But that all needs to be covered in the contract.

HOW

Can the freelancer subcontract? Send you the final manuscript by Facebook chat? Write in in crayon on coffee filters?

Define what format you want the work in, and how it should be sent to you. Email and ftp systems are pretty common now, but if you want it inscribed on vellum and shipped by carrier pigeon, you need to have that in the contract.

WHEN

Deadlines are important. Include them in the contract.

If you want the freelancer to show you progress before the final deadline, put that in the contract as well. It’s perfectly reasonable for a contract to state that the freelancer needs to turn over a draft with half the work done by the halfway point of the work period. It’s not reasonable to not give any warning you want such advance peeks at how things are going, then get upset of the freelancer doesn’t do so after the contract is signed. They owe you want the contract says they owe you—if you want to be able to dictate when and how and where they do the work, you need to actually hire them.

Also cover if the deadline is when the work is to be done, or when it is to be in your hands. Cover what happens if the deadline is missed. Are you going to start deducting money from the end payment? Are you going to cancel the contract? Do you want to have the right to do either but not be required to?

Put it in the contract.

WHY

By ‘why,’ I mean what is the other side getting out of this. You get the freelancer’s work so they should get… paid.

There are lots of parts of that. How much are they getting paid? Is it per word, regardless of how many words they turn over, or is it a flat rate for an approximate wordcount? Is it per word, but only words you end up suing after editing and development? Is it a profit share arrangement? And if so, is it a percentage of the gross, the net, or some other number (such as the gross of the amount you get from distribution, rather than gross of cover price, but after any money for pod and shipping)?

When is the payment coming? Upon acceptance? If so, what qualifies as acceptance by you (and how long do you have to accept before the writer can take their work back)? Upon publication? (That sucks, btw, but if you do it you need to define what counts as publication, and how long after that you have to pay, and what happens if you haven’t published it 90 days, or 9 years, after getting the work in).

How much? And is that in US dollars? Canadian? Australian?

How are you sending the money? Check in the post? PayPal? If there are fees involved in the payment method, are those your responsibility, or the freelancers?

Does the freelancer get anything else? A free copy of the book? Three free copies? The right to buy more at a 50% discount?

ANYTHING ELSE

When you are discussing this project, with the freelancer or anyone else, keep a notebook (paper or virtual), and take notes about anything important that comes up that people working on it need to keep in mind. Do you need map sketches to send to a cartographer? Well your contract with your writer had better say that. Do you need art descriptions of monsters? Or do you need three writers to work together so none of them duplicate each other’s work? Do you want everything playtested? If so, does the freelancer have your permission to disclose things to playtesters? Do they need to sign NDAs? Or is everything a secret, not to be discussed with anyone until the project is announced?

Think about what you need and who you need it from, then put that in the contracts.

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About okcstephens

Owen K.C. Stephens Owen Kirker Clifford Stephens is the Starfinder Design Lead for Paizo Publishing, the Freeport and Pathfinder RPG developer for Green Ronin, a developer for Rite Publishing, and the publisher and lead genius of Rogue Genius Games. Owen has written game material for numerous other companies, including Wizards of the Coast, Kobold Press, White Wolf, Steve Jackson Games and Upper Deck. He also consults, freelances, and in the off season, sleeps.

Posted on January 28, 2019, in Business of Games and tagged , , , . Bookmark the permalink. Leave a comment.

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