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.

So Activision has been on this big indie kick lately, right? Well, not really, at least not as much as EA who has been offering to publish a series of indie games under their EA Partners umbrella. But Actvision has certainly been doing some stuff, like their “$500,000″ contest, for instance. A contest where indie developers can submit their games to Activision in order for a chance to win some money and, maybe, get their game published. We’ve couple this a few times in the past.

But being a big time evil publisher/developer also means that the company is going to surround itself in a wall of legalese to ensure that the company is protected and that any indie developer who enters will almost certainly get screwed in the end.

Luckily, we have guys like Tom Buscaglia, a gaming industry attorney, whose willing to sift through all this bullcrap and explain exactly what it means to people like me, and you, who don’t really care to know it all ourselves. Here are the important parts, as explained by Tom, via his blog:

First, remember when the terms first came out and everybody got themselves into a tizzy over the fact that anybody who entered their game into the contest would basically be losing all rights to it to Activision? The actual wording went something like this:

Sending in a Submission constitutes entrant’s consent to give Sponsor a royalty-free, irrevocable, perpetual, non-exclusive license to use, reproduce, modify, publish, create derivative works from, and display such Submission in whole or in part, on a worldwide basis solely for purposes related to the Contest (including judging, advertising, and publicity related thereto).

Well, in reality, it’s not actually that bad. While the first part of that paragraph might seem a bit off-putting, the second part puts everything into perspective. “solely for purposes related to the Contest (including judging, advertising, and publicity related thereto).” This means that Activision will only hold those rights so long as they apply to the contest. You’ll still maintain full ownership of your title after the contest has ended, there’s no need to worry about that.

However, despite some good news, everything else seems to go down hill from there.

Game proposal materials include: 1) the game concept or design (maximum of ten (10) pages); 2) may include a video or game play demo (must come with extensive instructions on installations and use or it will not be considered); 3) must include an expected schedule, budget, team make up for development of the game, and execution plan.

Give this paragraph a look-through and think about what exactly is wrong with it. It shouldn’t take too long.

…

If you guessed: “they aren’t looking for already completed games,” then you’d be spot on.

The beauty of  most modern indie games competitions, like IGF, is that anybody can submit a game so long as it’s playable. It doesn’t matter if its been released to the public or not. With Activision they are clearly looking for game design documentation. These are ideas for a game that you plan on creating over the course of the contest.

While not necessarily a deal breaker for some, for others it could be quite disheartening knowing that your masterpiece isn’t really acceptable in a contest and that, in order to enter, you’ll have to spend more money and resources building an entirely new game.

But that’s not the worst part. Check out this bologna:

The Submission cannot have been submitted previously in a promotion of any kind or exhibited or displayed publicly through any means.

What. The. Hell? This essentially counts out almost every single indie and student developer out there, and thoroughly ensures that anything you’ve been working on over the past few months is basically null and void.

I work with and speak to many indie developers every single week. They are generally open people who love showing off what they’ve created even if its not in any sort of official, or finalized form. Many have dev logs, websites, and youtube accounts all of which are used to generate interest in their game.

This is an extremely important step for any indie developer. These guys don’t have the money to hold off on announcing or showing off a game until months or years into development. They need people to get excited about the game as fast as possible or else risk becoming completely invisible upon release. These guys certainly do not have much, if any, advertising budget that allows for such a comatose development cycle. They need to hit the ground running, throwing their game at anybody who will listen.

This also, conveniently enough, negates every single one of the games that were entered into either the IGF or IndieCade game contests.

So what’s the real deal here? Is this a true indie games competition for indie developers? Well yes, but it’s also a huge risk.  Not only do you have to start development on a new game, which will cost you your own money, but you’ll also have to keep it quiet and not let anybody know just what the game is until Activision decides to show it off. This means, in the likely situation that you don’t win one of the $100,000+ grand prizes, that you’ll have spent all this time, money, and effort on building a game that absolutely nobody knows about…

Seems like far too big of a risk for me. Anybody else out there willing to brave these daunting circumstances? Let us know below… BUT DON’T TELL US WHAT YOUR GAME IS!

Huge thanks to Tom Buscaglia, once again, for pouring over these terms and deciphering them for us. It’s nice to see there are attorneys out there who are fighting for indie developers, not against them.

Feels like ages since we first mentioned it (over three months, you make the call), but finally Activision has revealed some prudent details on the half-million dollar indie competition CEO Bobby Kotick mentioned off the cuff at this year’s DICE summit.

The contest will apparently be held in two phases, with the first phase now accepting submissions going through August 31, with cash prizes of $175,000 for first and $75,000 for second place winners announced in October. You’ll note that this is half of the original promised amount, well the second phase–which currently has no details–will apparently carry the other $250,000 for the top winner(s) in March 2011. A little different than maybe what was expected, but still a ton of dough up for grabs for an independent games competition.

Unfortunately for both the many potential foreign entries and the event itself, the competition is limited to developers located in the U.S only. From the full press release:

Activision(R) Announces Call for Submissions for the Activision Independent Games Competition

Activision to Award $500,000 in Support of Independent Game Development

SANTA MONICA, Calif., June 2, 2010 /PRNewswire via COMTEX News Network/ — Great games come from great ideas – but those ideas need support to reach their full potential. To help foster creativity and innovation from the rising talent in the independent game development community, Activision Publishing, Inc. (Nasdaq: ATVI) today announced the call for submissions for the inaugural Activision Independent Games Competition – the first competition of its kind from a major third-party publisher.

The Activision Independent Games Competition is open to all independent developers located in the United States, either individuals or teams, and for completed or in-development games (including game concepts/proposals). The competition will be conducted in two phases – round one of the competition will take place from today through October 2010 with first and second place winners chosen. The first place winner will receive a cash prize of $175,000 with the second place winner receiving $75,000 to assist with the development of their game. Details of the second round of the competition will be announced at a later date.

“This competition underscores our commitment to supporting the creative spirit and innovation of developers,” said Dave Stohl, Executive Vice President of Studios at Activision. “I started my career as a software developer, so this opportunity is something I’m personally very proud to offer to the industry’s young visionaries.”

Submissions for the first round of the competition will be accepted now through August 31, 2010. Winners will be announced in October, 2010.

For more information about the Activision Independent Games Competition, including official rules and submission instructions, please visit http://www.activision.com/IndependentGamesCompetition.

Headquartered in Santa Monica, California, Activision Publishing, Inc. is a leading worldwide developer, publisher and distributor of interactive entertainment and leisure products.

Activision Publishing maintains operations in the U.S., Canada, the United Kingdom, France, Germany, Ireland, Italy, Sweden, Spain, Norway, Denmark, the Netherlands, Australia, South Korea, China and the region of Taiwan. More information about Activision and its products can be found on the company’s website, www.activision.com.

Cautionary Note Regarding Forward-looking Statements: Information in this press release that involves Activision Publishing’s expectations, plans, intentions or strategies regarding the future are forward-looking statements that are not facts and involve a number of risks and uncertainties. Activision Publishing generally uses words such as “outlook,” “will,” “could,” “would,” “might,” “remains,” “to be,” “plans,” “believes,” “may,” “expects,” “intends,” “anticipates,” “estimate,” “future,” “plan,” “positioned,” “potential,” “project,” “remain,” “scheduled,” “set to,” “subject to,” “upcoming” and similar expressions to identify forward-looking statements. Factors that could cause Activision Publishing’s actual future results to differ materially from those expressed in the forward-looking statements set forth in this release include, but are not limited to, sales levels of Activision Publishing’s titles, shifts in consumer spending trends, the impact of the current macroeconomic environment, the seasonal and cyclical nature of the interactive game market, Activision Publishing’s ability to predict consumer preferences among competing hardware platforms, declines in software pricing, product returns and price protection, product delays, retail acceptance of Activision Publishing’s products, competition from the used game market, adoption rate and availability of new hardware (including peripherals) and related software, industry competition and competition from other forms of entertainment, rapid changes in technology, industry standards and consumer preferences, including interest in specific genres such as music, first-person action and massively multiplayer online games, protection of proprietary rights, litigation against Activision Publishing, maintenance of relationships with key personnel, customers, licensees, licensors, vendors and third-party developers, including the ability to attract, retain and develop key personnel and developers which can create high quality “hit” titles, counterparty risks relating to customers, licensees, licensors and manufacturers, domestic and international economic, financial and political conditions and policies, foreign exchange rates and tax rates, and the identification of suitable future acquisition opportunities, and the other factors identified in the risk factors section of Activision Blizzard’s most recent annual report on Form 10-K and any subsequent quarterly reports on Form 10-Q. The forward-looking statements in this release are based upon information available to Activision Publishing and Activision Blizzard as of the date of this release, and neither Activision Publishing nor Activision Blizzard assumes any obligation to update any such forward-looking statements. Forward-looking statements believed to be true when made may ultimately prove to be incorrect. These statements are not guarantees of the future performance of Activision Publishing or Activision Blizzard and are subject to risks, uncertainties and other factors, some of which are beyond its control and may cause actual results to differ materially from current expectations.

SOURCE Activision Publishing, Inc.

Copyright (C) 2010 PR Newswire. All rights reserved

Activision CEO Bobby Kotick announced earlier today at the DICE summit that his company plans on sponsoring an independent games competition.

What this all entails?

Absolutely unclear, save the fact that there will be a whopping $500,000 involved. Not a lot of money for the giant that is Activision-Blizzard,  but that’s big bucks for the indie scene to be sure.

No more details have been given, as Kotick’s announcement itself seemed to be a bit impromptu. We’ll contact Activision to see if we can get a little more info…right after we hopefully develop a $100k-winning indie game.

The second round of Assemblee wrapped up a few days ago, and I’ve been looking over the completed entries for hidden gems.

I’ve been pretty impressed with what the game designers were able to come up with, since there were working with sound and sprite resources that were created without a game in mind. After the jump are three games that really caught my attention.

At the current level of the industry, we have gone past musical instruments as peripherals and are now concentrating on ways to integrate full body motions into gaming. We are upping the ante with increasing graphical capabilities and creating vast worlds filled with detail. But, as it has been many times, even the games with vast worlds and excellent graphics have fallen flat because they are missing one key component: FUN.

Montreal’s Kokoromi collective believes that games can still surely be fun when they are built on simplicity. That’s why this year, after moving over to San Francisco and the Game Developers Conference, Kokoromi is challenging game developers to create games that operate by the use of just one button. The selected developers will be present at Gamma 4 on March 10th in San Francisco and will be handed All-Access passes to GDC.

This is some incredible exposure for those game devs looking to get recognized. Accompanied by live DJs and set on projections, the games will take new life and certainly provide a gateway for a brighter future. The submission process is taking place from now until January 31st in 2010. I encourage any and all indie devs, if time permits, to make some extraordinary stuff and maybe get that big break you’ve been looking for!

For full contest rules and info, go to Kokoromi’s official website for Gamma.

2Bee Games’ second Independent Game competition is winding down. There are now four finalists to choose from:

DriftMoon – an RPG title by Ville Mönkkönen which is currently in its early stage.

Kablooey! – an innovative point-and-click game that promotes logical thought.

Turba – a puzzle/rhythm title in which the gameplay is directly relevant to the music the player chooses.

Vector Conflict: The Siege – a first person 3D retro shooter set in a post-apocalyptic world.

It seems that the final of the selections, Vector Conflict: The Siege, has been the polling favorite so far. But it is suggested you take a look at all four of the finalists and, the fun part, play each of the games in order to make a choice yourself. Voting ends November 30th at 11:59 PM EST.

DIYgamer wishes luck to all finalists!

2Bee Games has, finally, revealed their top 10 finalists for their second Independent Game Competition. For those that don’t yet know, two of the previous finalists are actually getting their games’ made into XBLA and PSN downlaodable titles. So there’s quite a bit more here than the simple $10,000 grand prize… although that certainly doesn’t hurt either.

Here are the finalists:

• Bullets of a Revolver
• Cavemen vs. Aliens
• Climb to the Top of the Castle
• Cochon’s Pursuit
• Daytraders of the Dead
• Driftmoon
• Kablooey!
• Tower of Heaven
• Turba
• Vector Conflict

Demos and trailers of all the games are available via the links above, which links to 2Bee’s website. Although I think you must register with them to actually download the demo… Anyway, enjoy the picks!

[via 2Bee Games]

Zoo Games has decided to take the “community favorite” award winning game, Storm, and turn it into a published piece of work to sell in 2010. It’s always great to see indie games get the type of promotion they deserve and I can thing of no better game than Storm to get that treatment.

Storm was a very unique game that was entered into 2BeeGames.com first Indie Games Competition where it won the “community favorite” award and $5000. The game was a puzzle-based 2D platformer where in you control the weather; blowing gusts of wind, calling down rain and lightning, etc. In order to beat each level you had to manipulate the environment to move a series of balls from the beginning of the level all the way to the very end. It’s quite a unique game and I’m certainly happy that it’ll get more of a distribution stream now.

The entire game was completed by Terence Lee, by himself, in two weeks. He did all the art, programming, designing, and music. Congratulations Terence!