2011 was an amazing year for indie games. Huge releases seemingly every week, discounts all over the place, bundles, addons, expansions and general greatness upon greatness. However, gears were set in motion in the final months of last year ensuring that the first few months of this one might well bring us some of the best games of 2012. Here’s a few personal picks to keep an eye on in 2012, many of them available as public alpha builds at the moment.

With a new year approaching it’s often easy to forget what has transpired in this past year. As such, I’ve put together a little list to help remember some of the biggest indie game stories of the year, after all we’ve had a memorable year.

So this is kind of a funny article to write considering it was just over a month ago where I wrote about how bundles might be the future of indie game distribution. Then again a lot has happened in the past month which has not changed my mind on whether they really are the future, but has, unsurprisingly, changed my stance on whether they’re good for the industry.

Hooray! It’s time for my prediction post for next year’s most popular and well received indie games! Those of you who have been with us here at DIYGamer will remember my 2010 and 2011 editions where I was correct for a few of each prediction posts.

As we approach the end of the year, I thought now would be an appropriate time to take stock of the changes that have been happening around us in the wider games industry over recent times, and try to predict what the trajectory of current events in the world of indie gaming is, to predict what the future might look like. Here’s my indie gaming predictions for 2010, and please share yours in the comments too.

I spoke on this a little bit earlier this week with my post on indie game bundles, but now I’m broadening the subject a little bit. After all, who doesn’t enjoy a good discussion on game economics and distribution?

It’s difficult to argue against at this point as it’s increasingly likely that we’ll find our favorite indie games in a bundle of some sort, but could it be that the future of indie games and whether or not an indie game becomes successful depends on whether or not it is “bundled?”

Last week I asked for your favorite developers and we got quite an eclectic mix of developers! It was really fascinating to see which developers were chosen and why. This week, however, I’m looking for your favorite indie game and which one inspires you most.

Time for another weekly Discussionware! This time we’re going for something pretty broad and also something which I think everybody who reads this blog should at least have a passing interest in. Essentially I’d like to know who your favorite indie developer(s) is/are? What abut them inspires you so much.

Obviously this question is posed to a wide range of people involved with the indie industry. Gamers, developers, business folk…

Indie devs have more contests and competitions than ever to enter today to essentially become the next Minecraft or Monaco. However, these challenges sometimes involve signing legal paperwork that may give up too many rights.

I had colleague Logan McEwen, third-year law student and Academy of Interactive Arts & Sciences business scholarship recipient, weigh in on what I felt was some rather sticky language in Activision’s upcoming Independent Developers Contest. If nothing else, I hope entrants will think twice before entering. – John Polson

[Note: This is an opinion piece and analysis of a competition contract using a hypothetical. This is in no way meant as or offered for legal advice. If you have legal questions about this competition and your involvement in it, please speak to an attorney.]

By: Logan McEwen

It is no secret that independent developers have increased in numbers and prevalence over the past few years. With the growing disdain for overbearing employment contracts at publisher-owned studios and the viability of independent success shown by indie developers like Notch, veterans and new talent alike are going the independent route. As more talent funnels out from the larger studios, those developers see future IP and money walk out the door. But Activision may have found an answer to the increasing loss of talent and, using the guise of a competition, another way to keep indies out of the market.

The 2011 Activision Independent Games Competition seems like an olive branch to independent developers at first glance. The grand prize of $175,000 is given out for the best pitch or playable demo for a new game, along with all the prestige and pats on the back that Activision can dole out. But be weary, while Activision will be patting the winner on the back, their legal team will be sharpening the knife that will soon follow. Within the terms and conditions of the competition are a few clauses that raise concern and not just your standard fare either.

The clauses in the Activision competition agreement combine to destroy a developer’s substantive claim to their own game. The agreement places a huge burden on the developer contestant on the front end and then reaps all the benefits only for Activision on the back end. Let’s begin with what burdens are laid out on the developer. First and foremost, the developer must warrant that they own the intellectual property they are submitting if they become a finalist (See: How to Enter: Limit).

This is not unexpected in a commercial realm and you can only rightfully claim the prize if the work you submit is your own. However, the use of a warranty for a competition focused on the development of a game and not the finished product does raise a few red flags. Concentrating ownership of a game in the beginning stages can cause a lot of transaction costs for production to be throttled to a much earlier stage, especially if the game is intended as a joint work. So why would Activision need a warranty this early on? Besides getting a license to show off a contestant’s work, Activision retains the right to make a game exactly like a developer’s submission among other rights discussed below. These rights aren’t enforceable or valuable to Activision unless they have all of the ownership concentrated in one “developer” who can sign away all those rights. But the restrictions don’t stop there.

“The Submission cannot have been submitted previously in a promotion of any kind or exhibited or displayed publicly through any means” (See: How to Enter: Submission Guidelines)

This restriction is likely meant to let Activision get the first bite at a new IP (intellectual property) but it is also prohibitively restrictive on developers who would want to compete. In the copyright world, publicly displayed is far reaching and applies to any developer who has shown a tech demo or put up a youtube clip. While articles and discussions in text via the internet or publication may not violate this term, it is a thin line that could come down to Michigan state law (the agreement has a choice of law and forum clause as well).

An example would be Survivor Zero, the Reddit community developed game. As of now, concept art and discussions about mechanics and soundtrack choices have all been “published” on the subreddit for the game, but no tech demo has been released. As it stands, the developers could likely submit the game into the competition and sign away various rights and licenses only to find out later that the internet based inception of the project prevents it from competing at all. (This is ignoring the current debate of intellectual property on sites like Reddit as is being argued over “Rome Sweet Rome”). Developers who would submit and sign away a myriad of rights may find out that they violated the terms of the competition too late, leaving them with a gutted claim to their game and no money to show for it.

Those are just the burdens placed on developers who want to enter the contest. If the lucky contestant advances as a finalist then the agreement kicks in even more terms that show how winning this competition could be far worse than losing. This clause may be long, but it is extremely important.

“In order to be a Finalist, entrant must sign certain Submission documentation provided by Sponsor, which may include some or all of the following: release of claims against Sponsor; acknowledgement of Sponsor’s development of game concepts that may be similar to entrant’s Submission; first right of refusal to Sponsor for any development or publishing of Submission; agreement to provide Sponsor with splash/title/credits and logo credit similar to ‘funded in part by the Activision Independent Games Competition Prize 2011′; grant of name and likeness publicity rights to Sponsor; and full representations and warranties regarding the IP ownership of the Submission.” (See: How to Enter Limits)

There a few things a developer is signing up for here and each of them has their own implications. The first and likely most frightening is that a developer releases Activision from any claims against Activision for releasing a game that is “similar” to entrant’s submission. If Activision makes a developer’s game with its own people and releases it then the original developer has no claim, no rights, and likely no compensation. On top of that though, if Activision doesn’t want to sink the money into development they can wait for the developer to finish the game and be ready to release it. This is where the clauses start to buff each other.

If a developer finishes the game that won the competition, then Activision gets a first right of refusal. This means that before a developer can shop their game around to any other publishers, they have to take it to Activision first. Activision can then offer a publishing deal, or outright refuse to publish the game. After refusal, the developer is free to shop the game around to others but it doesn’t stop there. A first right of refusal can serve two purposes and while the first is apparent, the second is not. As a developer presents their finished game to Activision as required by this agreement, Activision has now been put on notice that the game is ready to hit the market and what the final product looks and plays like. Activision now knows this and has the developer standing there waiting to hear if they will publish the game or not, all the while they can prepare or finish their own version of the developer’s title under the prior release portion of the agreement.

If a developer does dispute how their work ends up getting used, the most they could sue for is money out of pocket. The agreement limits what claims can be brought against Activision if a dispute arises and the remedies are wanting. And just to make sure that the developer has no misgivings about their intentions, Activision lays out how much they want to publish an independent developer’s game.

“Each winner accepts and acknowledges that Sponsor shall not be obligated to use the Submission and that Sponsor in its sole discretion shall have the right to refrain from using the Submission.” (See: Winner Requirements)

Activision knows what it’s doing, and they would likely blame the very contestants in their competition for these types of clauses. The rise in independent developers shows a change in the tides for the interactive media industry, and it is a change that terrifies publishers like Activision. Digital distribution has pulled developers and consumers away from larger publishers and allowed for a more diverse and often interesting marketplace. This competition could be the “American Idol” of the interactive media industry, a sign that those in control of the means of distribution have lost their grip over those who create. Developers are in a better position to bypass overbearing publishers with digital distribution, and this competition proves that the publishers know that.