Turning Game Players into Game Developers
Gamasutra has a great article on why it makes good business sense to utilize players as developers of new content. It can be a new revenue stream for the publisher, it can build brand loyalty, it can increase the game's long tail, and it can mean fresh content without having to build it yourself. So pretty much all positives and very few, if any, negatives.
At least, there are very few negatives so long as you build the legal structure appropriately. There is a ton to consider when developing a means by which players can build, distribute, and monetize their own content - a typical development agreement between a publisher and a developer can span dozens of pages of dense, legalese print. Is this something you think you can implement in the context of a player/developer relationship? Doubtful.
So what are the issues that should be considered? This post will by no means cover them all, but here are a few key highlights:
Intellectual Property
The grand poobah of the issues bucket list.
- You as the "publisher" (note the use of quotes here, since that distinction is becoming less relevant in this context) need to have in order to distribute and exploit the player-created content. But there can be a tendancy to take more than what you need in order to "lock down" these rights. I challenge my clients to constantly ask themselves whether they need all of the rights they are seeking, or whether something less would work just as well, and be easier to monitor. After all, licenses can be perpetual; grants of ownership may be subject to reversionary rights later in life.
The question of license-vs.-own becomes even more important if you want to take the content and exploit it internationally. For example, do you know your requirements as publisher for comply with various countries' moral rights laws? Does the country you seek to exploit the work in even allow you to do what you want to do?
- Consider the kinds of content you are allowing players to create, and whether ancillary IP laws like VARA may apply. (How this could happen is a fascinating question, but that's another post).
- When players create content, publishers have no way of knowing whether the content is original or not. There's no clearance process to speak of, so taking advantage of the safe harbor provisions of the DMCA is incredibly important. For example, have you appointed a copyright agent, or are you at risk for a Righthaven-like troll coming after you? Do you have an appropriate notice-and-takedown regime in place?
- Aside from copyright issue, have you considered the impact of trademark laws in the player-created content? After all, the DMCA doesn't apply to trademark issues so how will you handle a situation where someone uses the McDonald's Arches as an architectural work, or the Nike Swoosh on virtual clothing.
- What about publicity rights? If I put my face on a digital item then distribute it through your player-created content network, can I turn around and sue you for infringement of my right of publicity? Maybe, maybe not depending on whether there is an implied right to use my name/image/likeness, but why not deal with it up front?
Revenue Share
- Are you taking an off-the-top fee like Apple does, or is your rev share more complex? If it's more complex, what kind of definitions for "gross" and "net" are you using? Keep in mind that there are industry standards with this, so if you depart from that standard, you should have a good reason for doing so (and a compelling sales pitch as to why that departure is good for the player).
- Are you providing access to any sort of dashboard or control panel so players can monitor the exploitation of their content? What promises, if any, are you making with regard to access to and usefulness of this program?
- What rights, if any, will players have to dispute the revenue share?
- On what kind of payment cycle will you pay players? Will you keep any of the player's share as a holdback, and if so, how much and when will this be liquidated.
- If you're going international, where does currency exchange fees come into play?
Nature of the Content
- How will you respond if someone uploads buggy content, or even worse, content that contains malware? Do you know the extent of your liability?
- Will you engage in a rigerous approval process (a la Apple App Store), or take a more laissez faire approach (a la Google Play).
The above checklist of questions is not meant to be all-encompassing, but as you can see there are more than a few issues that need to be thought through prior to launching a player-created content system. Moreover, you should seek out an expert to assist with your decision-making and documentation thereof. Not only will this help you understand the contours of the issues you face, but this will also help you create player agreements that are easy to use and easy(ier?) to understand.
