he videogame industry is now the most profitable individual
sector of entertainment, having experienced exponential growth over the past
forty years. Great games can quickly generate a large and unusually engaged
fanbase, and as a result it could be argued that games will be the single
biggest source of major entertainment brands for the foreseeable future. A
cursory glance at Twitch reveals tens or hundreds of thousands of viewers
concurrently watching streamers playing games like Fortnite, The Witcher, Sekiro, Overwatch and Grand Theft
Auto. Even indie titles like Hollow
Knight, Stardew Valley and Untitled
Goose Game can attract thousands of attentive viewers. The potential to
grow videogame properties into multi-platform entertainment franchises is
greater than ever.
Historically, television and film adaptations of videogames
have been critical and commercial misfires. However, the general growth of
gaming, the increased sophistication of storytelling in videogames, and the
general demand for IP-based content (driven in part by the emergence of
multiple new streaming platforms) has created a perfect storm. Accordingly, we
are currently seeing more videogame adaptation deals than ever before, some of
which are very complicated and extremely high level.
While the fundamental structure of acquisition or licensing
deals for videogame properties is similar to that used when acquiring older
forms of media such as books and articles, there are some specific
considerations when dealing with videogame properties, some of which are listed
below. It is strongly recommended that parties on both sides of the negotiation
engage an attorney and/or agent who is familiar with both the film or TV (as
applicable) and videogame businesses to negotiate the deal. It will be very
difficult to close a deal without an understanding of the gaming world and what
motivates its rightsholders.
- What is the “Property”? : Up until recently, it was relatively easy to define what a “game” was. Games came on disc, cassette, cartridge or CD sold as physical products through brick and mortar retailers for a one-time payment. Successful games yielded sequels and spinoffs (and sometimes “add ons”), but games were generally released in a fixed form. With the emergence of digital distribution and the concept of “games as a service,” that has gone out of the window. Games are now routinely and regularly patched, updated, supplemented and expanded via a combination of free and paid downloadable content (or “DLC”). For example, the game No Man’s Sky has been updated and expanded so comprehensively since its launch in 2016 that it is almost unrecognizable as an experience from the version released at launch. As a result, it is imperative that buyers understand what they are acquiring – and unless negotiated otherwise for a very specific reason, the “Property” that is granted to the buyer should include all elements, versions, expansions and content relating to a title, for as long as such title is supported. Ideally, all sequels and spinoff games would be included in the rights grant as well (but that is a more nuanced subject that may require some discussion).
- Investigate Third Party Interests: While other forms of properties (including novels and podcasts) can have complicated chain-of-title issues, videogames are particularly likely to have unforeseen ownership and/or approval issues complicating the acquisition process. Often the rights in the game may be owned and controlled by a publisher, but sometimes the actual creator or developer may have approval rights or other interests that need to be addressed. Things get even more complicated when dealing with Japanese properties, where there may be one or more intermediaries to deal with before one is able to negotiate directly with the rightsholder. It is important to ask the right questions at the very start of negotiations to be able to identify and address any specific issues.
- Discuss Controls and Approvals: While television and (particularly) film producers often view their medium as the pinnacle of artforms, it is important for producers to understand that – in many circumstances – a videogame publisher or developer does not need them. Many videogame rightsholders make millions or billions of dollars solely from videogame sales, which can then be supplemented through the sale of DLC and merchandise. Even independent developers may be able to make a good living through a combination of the right business model and smart engagement with their fanbase. As a result, rightsholders will often be extremely cautious about entering into any kind of arrangement that could tarnish or dilute their brands. No sophisticated rightsholder today would agree to the kind of agreement that yielded the likes of Super Mario Bros. (1993), Street Fighter (1994), BloodRayne (2006) or Tekken (2009), all of which were critically lambasted and bore little relation to their source material.
Indeed, many videogame rightsholders are
unlikely to be prepared to enter into a traditional option purchase type
arrangement where they are viewed as passive rightsholders without any kind of
active involvement or approval. Producers therefore need to think carefully and
walk a tightrope to ensure that they make the rightsholder feel invested and
comfortable, without ceding control in a manner that could jeopardize their
ability to set up and produce the project. Of course, if they can strike the
right balance then the dividends – both creative and financial – could be