Quality of Life in the game industry suffered another black eye with the posting of an open letter by a group who identified themselves as Rockstar’s Wives on Gamasutra. It looks like the wholesale exploitation of impassioned developers in our industry is alive and well and living in beautiful San Diego. This is sad, so sad. With all the research and anecdotal data supporting the fact that overwork is actually counterproductive, the burn out factor that deprives our creative industry if talent (its most valuable asset) and just the simple immorality of the whole exploitation of artists and workers by managment…all I can say is shame on you Rockstar for being stupidly greedy and, apparently, completely unenlightened about state of the art employment practices (see, e.g., Google.).

The IGDA has a long standing position on Quality of Life issues and even has a QOL Special Interest Group that does things like white papers and surveys on work place issues. The IGDA also has a long standing position against the exploitation of workers by management in our industry through excessive overtime and other workplace abuses. But the IGDA is also run by a 12 person Board of Directors that has been characterized at times in the past as being out of touch and slow to respond to issues in the industry.

So, why hasn’t the IGDA made a public statement. As a volunteer organization with a large Board, it takes a little time. Quite simply, the logistics of getting the statement drafted by members of the Board and the QOL SIG, and then securing unanimous consent from all 12 Board members took a few days. But if you are wondering where is the IGDA public response on this issue, it was posted today.

Personally, I am sorry to see these reprehensible employment practices persisting in our industry. But I am glad that they are back in front of the industry at large as these issues need attention. The burden of the current economic slow down should not be put onto the backs of employee developers. Moreover, these sort of exploitative work place practices seldom if ever go disappear once instituted without some external stimulus, like the harsh light of negative public opinion. Of course, it is also up to developers to stand up and object when abusive workplace issues arise. As an industry, I firmly believe that we are better than this!

It will be interesting to see just how Rockstar responds, both in public and in practice, and if they come to their senses and start feeding, instead of consuming, their talent.

Tom B

I sure screwed the pooch on that one…I am, of course referring to my prior posts taken by many to be in defense of Langdell and much of the communication with his numerous critics that followed.

The whole thing seemed pretty simple…trademark, alleged trademark violation, legal dispute…heck, this is just part of the world I live in every day. So, I was insensitive to the mood of things and ended up getting seriously trashed on many of the indie game boards like TIGsource and the Chaos Engine for saying that maybe Langdell had a point. Yeah, I did smell a lynch mob forming and I responded very defensively to the trashing of the IGDA, an organization that I support and believe in, but that’s not much of an excuse. And I took more than a few lumps for speaking my mind. I have since realized that I may well have appeared to be on the wrong side of the dispute, though I never really did feel I was taking sides, just advocating for a fair fight. That’s not the point of this post though…the point is that I did not really comprehend the impact of my actions had on my relationship with many of the indie developers who don’t know me until later.

When I got to Austin GDC a few weeks ago I found that there was an Independent Game Summit going on there. I was surprised that I had not been informed of it as I have spoken at the past two IGS programs and even was honored to be an IGF judge last year. I have also been a “prize” in the IGF at GDC at the suggestion and request of the organizers, contributing over $14,000 in products and legal services to the finalists and winners each year for the last two years. But in Austin, not even a heads up.

As I walked toward the room where the indie sessions were happening I got a horrible hollow sinking feeling in my gut. When I entered the room and walked over to Matthew Wegner, the IGS program director to ask him what was up, the dread on his face as I approached confirmed my suspicions. He was honest enough to tell me that to some indies I was a persona non grata. I am also pretty sure that Simon Carless, the publisher and editor who runs Gamasutra, Game Developer magazine and GameSetWatch, as well as being Chairman of the Independent Games Festival was none too happy with me either. I was sick about it and still am.

I am not going to go into how committed and devoted I am to indie developers too much here…but it is a core mission for me in my legal practice and in my life. I contribute time every day to “my peeps” giving advice and counsel to indie developers without charge and writing articles to help indies avoid getting screwed.

This quote from my email sig pretty much says it all:

“There’s been this tradition in the [video-game] industry that everybody gets screwed on their first deal, I’m doing my best to make sure that that becomes a historical anecdote instead of the way we do business.”
Tom Buscaglia, The Game Attorney - Lawyers Weekly, December 3, 2007.

Sure, when I reach out to independent developers or provide them with free advice I am building relationships that may result in work later…but then, making a living doing what you love for people you like is a good thing, right? Besides, that’s not the reason I do what I do. Nor is it the reason I developed the Game Dev Kit, write articles, do free webinars, contribute my time to the IGDA or give legal services to the IGF winners each year. I am driven by a passion for indies, just like they are driven by a passion for making games. You can imagine my dismay and disappointment at realizing that I had damaged my relationship to a community that I have dedicated myself to.

I am not sure if I will ever be able to get back the cred I have lost or heal some of the relationships I have damaged. I have decided that all I can really do is keep doing what I do and hope that those who may need my help or counsel will see through this stuff and still take a listen or give me a holler…

As for anyone I offended with my thoughtless, blunt and often surly manner, I sincerely apologize if I offended you…it was not my intention.

Tom B

Well that was fun. I had the pleasure of doing my first Webinar entitled Indie Gold: Downloadable Content Models for Core Casual Games, as part of the IGDA Members Only Webinar Series. This program is something that the IGDA board had talked about from time to time but never really got anywhere. The new IGDA Executive Director, Joshua Caulfield, had the same idea as the org doing webinars as a way to deliver real member value. The difference being, instead of just talking about it, Joshua made it his mission to actually make it happen!

The Webinars are offered to IGDA members only. But as a presenter, I am able to offer the recording here to my faithful minions and anyone else with an interest in the game business and running a successful Indie studio!

I hope you find it of value. So, check it out!

You can get it HERE.

GL & HF!

Tom B

Randy Pitchford, from Gearbox, the creators of Borderlands, recently did an interview for Maximum PC in which he took a shot a Steam, saying that it amounted to a conflict of interest and that Valve was taking advantage of small studios. I could not disagree more. Steam provides independent developers access to the market place on an even footing with major publishers. Royalties from Steam are easily 5+ times more than they would be through traditional publisher dominated retail distribution channels like Wal Mart (which apparently Randy seems to like). It is hard for me to under where he is coming from, as it makes no sense to me. I have several clients who would not be the successful studios that they are today without their relationship with Steam.

I thought it might be relevant if I reposted in its entirety an article I did on digital distribution that first appeared in Gamasutra in March 2006.

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The Good News About Digital Distribution

Last year at GDC, I met the guys from Tripwire Interactive. They had just put their studio together from the team that created the Red Orchestra mod that won the “Nvidia $1,000,000 Make Something Unreal” contest. Their mod had also garnered a bunch of “Mod of the Year” awards. Since they needed my legal help, but were tight on cash, we worked out a deal where I agreed to represent them for a percent of revenue. Sort of like an agent, but at a much lower percentage.

I do this from time to time with teams that I really believe in. And, I had even done a similar deal with Trauma Studios, the creator of Desert Combat, the prior year’s “Mod of the Year.” So, it seemed fitting. (Hmmmm…I wonder who got “Mod of the Year” for 2005?)

There was a great deal of interest in the commercial version of the game from several publishers including Midway. And we worked for months trying to close a deal. But eventually it became apparent that even though the folks on the product acquisition side were very interested in the game, the marketing folks were not going to green light the deal because their retail buyers had not heard of the game and would not put in significant initial orders necessary to minimize their risk. So, no deal.

The Red Orchestra Deal

Fortunately, as part of the contest winnings, Tripwire had an Unreal Engine 2.5 license. So, although they did not get the whole million dollars for winning (the total prize money in products, engine licenses and cash totaled $1,000,000 over the entire contest), they had an engine and some cash. So, they put what they had into finishing the game however they could. We continued to look for a publishing partner and began discussing the digital distribution possibility.

We looked into a bunch of digital distributors including IGN Direct 2Drive, Trymedia’s Digital River Distribution network, GarageGames and Valve’s Steam. I assumed that Steam was limited to only Source Engine games and that there was no way the Valve would want Red Orchestra, a WWII FPS game made with Unreal technology, competing against Valve’s own Day of Defeat. But to his credit, John Gibson, the head of Tripwire got in touch with Valve anyway. To my surprise, the folks at Valve were not only interested, they were straightforward and easy to work with. A real pleasure. So, in short order we had our digital distribution deal in place.

Of course, with a digital distribution deal, there is usually no big marketing push from the distributor like there is with a big publisher. But, through Steam we would be selling into the hardcore FPS gamer market. And as a result of the Valve deal, Red Orchestra got solid editorial exposure in major PC game publications, including two page “preview” articles in PC Gamer US and UK. The buzz from the Valve deal resulted in a retail distribution deal with Destineer as well. No advance. But access to the retail distribution channel and a solid chance to succeed. And most important, no need to give up the IP rights to the game.

That means Tripwire has a chance, maybe not a big one, but a chance to retain the IP to a franchise that they built. And that means long term IP value to the company. And it was the digital deal that made it all happen. So, Tripwire Interactive’s Red Orchestra: Ostfront 41-45 is set for release in March 2006 via digital distribution on Steam followed by retail as soon as the media gets manufactured, through the retail pipeline and into stores. Wish them luck!

The Digital Distribution Advantage

Once the digital deal is in place, a retail publisher is in a much less advantageous bargaining position, especially where it comes to IP ownership issues. Digital distributors, at least for the present, have no interest in obtaining IP ownership for the games they distribute. The so-called casual games, or “Pop Games” as I like to refer to them, have been building this model in the PC market for several years. And with the present broadband penetration, the download of full-blown PC games is a reality. I recently purchased F.E.A.R. digitally, and that’s an over 1GB game, unzipped. And we all know of Valve’s success with distributing its games via Steam.

Digital Distribution for Console Gamers

Up until now digital distribution has been something unique to the PC market. But the Xbox Live Arcade (“XBLA”) is changing all that. The size of the game that can be downloaded on XBLA is limited to the size of the 64MB memory card, which limits things somewhat when compared to PC downloads. But it is a huge potential market. Of course, access is also an issue.

If access to the XBLA pipeline gets clogged with aggregators who are already XBLA certified, we could potentially end up with some of the same issues we have now with the retail channel. For example, although MS has no interest in game IP ownership, at least one of the XBLA aggregators is looking to acquire IP rights to the games it distributes through XBLA. But hopefully this one distributor is an aberration and there will be enough less greedy options for developers to just go elsewhere. After all, the marketplace is a great influencer of predatory policies like this.

The big question is, will the PS3 and Nintendo Revolution also have a digital distribution capability? I suspect they are considering this right now since XBLA is doing a brisk business and leaving this potential market open to a fierce competitor like Microsoft could be a huge blunder. So, it is at least possible that Sony and Nintendo will also do some sort of digital distribution in their next gen consoles. And they may even do it better that MS.

The Bottom Line

So, I have become a believer in the digital distribution of games. The developer’s royalties are usually two to four times greater than what they are in a traditional publisher deal. This means you can sell fewer units and get by and if you get a hit, you get much more return, even at a significantly lower price point. Also, in most cases the developer retains the IP. This help builds long term value in the studio, something you cannot get otherwise unless you develop some sort of patentable technology or other licensable tools and technology while your making your game.
The digital distribution model also opens the door to pure funding deals that do not involve publishers who, frankly, charge much more than the value of the money for the funding they provide. But most important, digital distribution means more ways to get your games directly to the players with as little “middle man” action as possible. That has always been the great promise of the Internet and it’s great news for developers. Heck, higher royalties, you get to keep your IP and direct access to your user base. It’s hard not to believe!

I just got back from LA and E3. I have to say that as much as I have been offended by the excesses of E3, it is great to have it back on the annual schedule of events. After spending a great deal of time and effort working to get a extra dollars, seeing the amount of money wasted on the marketing magilla that is E3 has always grated against my sensibilities. But that said, it is an awesome spectacle, that is always both inspirational and mind numbing. The socializing there also is a bit mind numbing as well!

This year’s return was certainly smaller in size and scope that in past years. But it was still enough to take a day or two to absorb. The usual high def CGI videos of projects that have yet to made. Tons of medioctraty and “crap in a box” that always makes me wonder why anyone would fund or try to sell. And a few gems.

As expected, Infinity Wards upcoming Call of Duty release looked awesome. Seems like they will be going for Game of the year again. My buddies from THQ’s Chaos studio look to be on their way to making an awesome game, in Homefront. Just a short demo was available and I do not think it will be released until late 2010….but I like where they are going with it.

I also met some nice folks along the way…all and all a good trip and a lot o fun.

This is a response to the recent dust up over, IGDA Board member Tim Langdell and the EDGE Trademark . I am speaking now for myself and NOT on behalf of the IGDA.

I call that a hatchet jobs aimed at Tim L. and at the IGDA because the author, the Editor of the Gamasutra web site didn’t do what I feel is the necessary due diligence before posting. I think this matter is obviously a bit more complex that Simon’s article presented it. I feel it was irresponsible of Simon to not ask everyone involved for their comments prior to poast, as is the standard practice of journalists.

This dispute relates to a company that believes that is it enforcing its Trademark (See below). While you or I may not agree with those laws related to Trademarks, they are what they are. Moreover, the IGDA represents the individuals who make games, not the companies that make them. So, although no one is more committed to independent developers than I am, this is a legal dispute between two companies regarding an alleged Trademark infringement. So, while I anyone’s effort to fight for the little guy, these matters are for the court of law, not for a court of public opinion.

As someone who has litigated intellectual property cases, I can tell you that these cases are never as simple as they might seem to a lay person, especially when one only has access to one side of the story. I suspect that if you had spend 20 odd years building a Trademark to brand your studio and games, and paid to have a Trademark registered, you might also feel compelled to enforce your trade name. BTW, if you do not enforce your Trademark, you may lose it. So you may want to also take that into account in your analysis!

This is hardly a matter for the IGDA either…Board members do not lose their legal rights when elected to the Board. I personally do not think that lobbying the IGDA to intervene or even take sides in a legitimate legal disputes not the right approach, even if one of the parties to that dispute is a member of the BoD!. If Tim’s position is correct (and I do not have enough information to determine that issue one way of the other) you are recommending that the IGDA support a party who has infringed a legal and enforceable Trademark. That’s just nutty!

I do not see that as a viable position for the organization under any circumstances. In any case, I do not see how Tim L. vigorously enforcing his legal rights as contrary to the code of ethics in any way.

Again, I am speaking now for myself and NOT on behalf of the IGDA or as an IGDA Board member. But as me, Tom Buscaglia, The Game Attorney.

Tom B

************’
Word Mark EDGE
Goods and Services IC 009. US 021 023 026 036 038. G & S: computer game software, computer game programs, video game software, video game programs, computer game software that may be downloaded from a global computer network, video game software that may be downloaded from a global computer network, computer game cartridges to be used in computer game machines adapted for use with television receivers, video game cartridges, computers, computer accessories, plug-in boards, peripheral devices, flash cards, set-top boxes, cable modems, mobile game devices, handheld game devices, video game consoles, video game assessories, video game peripherals, augmented reality games, virtual reality games, games designed for use with mobile entertainment devices. FIRST USE: 19840601. FIRST USE IN COMMERCE: 19840601
Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 78807479
Filing Date February 5, 2006
Current Filing Basis 1A
Original Filing Basis 1A
Owner (APPLICANT) EDGE GAMES, INC. CORPORATION 530 SOUTH LAKE AVENUE #171 PASADENA CALIFORNIA 91101
Assignment Recorded ASSIGNMENT RECORDED
Prior Registrations 1853705;2219837;7502940
Type of Mark TRADEMARK
Register PRINCIPAL
Live/Dead Indicator LIVE

——————————————————————————–

This is part of an email to Darius Kazemi regrarding a blow up on one of the IGDA forums as a result of a former IGDA Board members touting the value of working his employees liik dogs, but paying them like princes and the perceived failure of the IGDA to publicly criticize him for his statement….

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You know when someone gets elected to the Board they are not issued a cape or any superpowers. Most just want to help out…sure, some want to pad their resumes or feed their egos…but for the most part the board is very dedicated to the org as a whole. But that does not mean that they are the stooges of the members or have to do what a few vocal people think they should.

Here are a few of the more urgent issues the board is presently addressing….

A diminishing membership, both individual and studio affiliate

Operation loss and diminishing cash reserves

Replacing the Executive Director

Launching the new web tech

Continuing and expanding our stand alone conferences

Implementing a marketing and communication plan (we have none)

Launching the IGDA Magazine

QOL Surveys (both Studio and individual)

Managing our relationships with other conferences (like the whole China GDC/GDC China cock-up)

Chapter formalization

SIG formalization

The moving forward with the IGDA Foundation

Finding sponsorship funds to do all this stuff…

I am sure that this list is incomplete…that’s just off the top of my head. Right now every member of the Board is putting tons of time into the IGDA without thanks or compensation…I am not bitching here…but I have spent most of my office time since I got back from GDC on IGDA stuff…and I know that Bob Bates has done nothing else as well. And we all have to make a living on the side.

So, if you think you’re frustrated with the IGDA, you have no idea. The IGDA as an independent entity is less that 4 years old (since the CMP spin off). We have one employee (well we should, but right now we don’t) who is the Executive Director. We also have Talley Group, the Association Management Company that handle the back end. The rest is all volunteer efforts..from the Board chair on down…some more than others (I don’t want to even guess at the actual monetary value of of my investment of time into the IGDA over the past 8 years.)

The Board usually meets by phone for 90 minutes every month or two and has a face to face two day retreat annually to try to set priorities and make action plans. Not a great deal of bandwidth there is there? I am not asking for any appreciation here..but perhaps a little understanding of the inherent limitation of a member funded volunteer organization…we can only do what we can do….

Darius, I know you do a great deal for your chapter…I ran one for 5 year myself…but doesn’t it sort of irk you when someone shows up at a chapter meeting and tells you how your chapter is a stupid waste of time and sucks? And then tells you how to run the chapter because they have a special bone to pick…and they know better then you do how to run things…I’ll bet that engages you in a positive manner to make changes and to prioritize their issues…well maybe not. In fact this sort of attitude does just the opposite. I actually had one of the fucktard’s on the forum string tell me I should resign from the Board because I am such a failure?!?!?! WTF is up with that?

The Board does not do a very good job of engaging its volunteers…but those who want to bitch about the Board need to think about this same issue…the Board is also volunteers and telling them that they are failures, should quit, and are not doing their jobs does nothing…at least nothing positive. It just makes me wonder, “Is doing something positive even on the agenda here?”…or is it just telling others how they should live their lives because you know more about what’s good for them than they do…Bah! What arrogant bullshit!

I was raised a socialist. I took the the streets the day after Kent state, I am the “man of the people” on the Board. And in my heart I agree with the position regarding QOL expressed by the most vocal of those posting on the thread. But that said, I do not think it is the place of the IGDA to tell anyone, employer or employee how to work. If someone believes in a high QOL, then they should work someone where that is the standard. Everyone gets to vote with their feet! If they want to work long hours, for whatever reason, that is their decision. This effort to turn the IGDA into a moral police force “that knows better what’s good for you than you do,” is lame as shit. And as much as I believe in QOL, I will have no part in it…

The IGDA QOL effort must be one of education of employees and enlightenment of management (a carrot, not a stick!), not one of sanctions or anything else like that.

After some serious soul searching, I have decided to resign all of my various positions with the IGDA including the Board of Directors and as the Chair of the IGDA Foundation. Several matters have come up recently that have made me realize that my efforts within the IGDA on behalf of game developers have been ineffectual and, frankly, a complete failure.

In addition, I have decided that I can not longer work in the Game Industry and have decide to change my practice focus to personal injury law where I can make some real money!

Posted on April 1st 2009!

So, in advance of my major expenditures at GDC, I paid down my AmEx Starwood card so that I could use it to pay for my Suite at the Westin for the week. Today I got word from AmEx letting me know that they reduced the credit limit of that card by….yep, you guessed it, the entire credit reserve I had set for the Hotel at GDC! Fuck me running! What absolute crap. Never late, no delinquencies on the credit reports. Yes, I do tend to keep my cards close to the max credit, but I d not see how I can ever change that if every time I pay down a card they lower the credit limit.

Having an AmEx card used to make me feel like I was secure. Not it just makes be feel like a fool!

All I can say is, “Fuck you American Express….you suck dog ass!”

So, I just finished a huge rant about Adam Martin’s decision to quit the IGDA after losing his bid for election to the IGDA Board of Directors…and then inadvertently navigated away for the post page and lost the entire thing…well, maybe that for the best anyway since I pretty much was calling him out as a whiney little bitch who would rather quit after a loss than jump in deeper and continue to work to make the IGDA better. So, I guess I’ll do it again…in a shorter version…

I said that with much more clarity the first time, but I guess the message is the same. I am sad that the IGDA is losing someone as passionate about the IGDA as Adam claims to be…but if he does quit, maybe he is not as passionate as he claims and the org is better off without him. Heck, I don’t know. But as one who has been involved actively in the IGDA for over 8 years, founded and single handedly ran the South Florida Chapter for 5 years, lost his first effort to be elected to the Board but came back and has been elected and then reelected to the Board, was the moving force on the Board for the formation of the IGDA charitable Foundation which I now chair, created and Chair the IGDA ECQC Taskforce, is working with others to relaunch the Seattle Professional IGDA Chapter and moderating several IGDA forums.

So, I say “Cowboy up Adam.” If you don’t like the way the IGDA is, get into it more and do everything you can to make it better. And if you do go forward with your stated intention to quit, don’t let the door hit you in the ass on your way out. Me, I get so frustrated with the way the IGDA is that I am ready to pop a blood vessel much of the time. But I have more fight in me than quit…and there is still lots to get done around here! Yeeeehhhhaaawww!