Legal Q: Can my company stop me launching my game?

edited in Questions and Answers
I work professionally in IT and my company has obvious conflict of interest concerns when it comes to their staff "moonlighting".
However, since games are not (so I thought) in their general area (corporate) of interest, I decided to mention my plans to the powers that be, to keep things above board and legit, thinking I would get their blessing. The opposite seems to have happened...
They responded with a vague "there might be implications" and now I'm left with my finger hovering over the launch button while looking over my shoulder, so to speak. Any similar experiences or advice from anyone would be greatly appreciated. Thx

Comments

  • Well, unless there is a clause in your contract stating that anything made/done/funded/anything of that sorts on their facility is their property you shouldn't have a problem. So have a look at that.



  • *sits patiently and waits for @LexAquilia to pwn the everything ever*

    It's like a superpower, I swear.
  • edited
    Oh, here is a link where the game can be viewed for anyone wondering...

    [Edited: Link removed]

    Please also feel free to crit it, i'd appreciate feedback good and bad. It's a windows 8 metro touch/mouse/keyboard game that I can "hopefully" get out the door in time for xmas.
  • Right, so here is the skinny, it's not that the company can't stop you from launching your game, your issue is that there is a high probability that the company actually owns your game, and therefore any profits or whatever you make from it belong to them, and not you. Yes, even if you made this game after hours, using your own funds and on your own equipment.

    You say you work professionally at and IT company, but what do you actually do? Depending on what your job description actually is will depend on what claim the company has. Feel free to DM me if you like :)
  • That's what I was talking about :) Same thing at varsity. Everything we do... they own! EVEN MY MIND :P
  • edited
    I'd expect that your company wouldn't claim those profits unless the profits were more substantial (by their estimation) than the worth of you as their employee.

    And that's even if a game falls under the things of yours that they own if you produce them.

    It seemed really weird to me that companies owning all the production (even after hours) that employees produce is standard in contracts. Obviously it's about protecting companies from theft, so it makes sense 99% of the time, but in a creative industry where loose collaborations are common and teams are small (like independent gaming) it doesn't seem suitable (without some modification).
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    @konman Hey, like your tennis theme to break-out.

    Just a thought. There seem to be a lot of negative pickups (some with interesting powers, like "cloudy"). Once the player has learnt what they do though they become obstacles to avoid. But it looks like avoiding pickups is much easier than catching them.

    Maybe if the pickups were easier to pickup (like by making them travel slower) these obstacles would have more of an effect.

    Though maybe if there was value in collecting ALL the pickups (and the pickups were easier to catch) it might be more interesting. e.g. Instead of time you are scored on points and every brick is worth 10 (for example). And picking up a pickup increases your score multiplier, while missing a pickup resets your score multiplier. So then players are trying to pickup ALL the pickups, good and bad, and have to adjust to all the interesting situations (like it going foggy... which I thought was really cool thematically).

    What I mean is, playing under foggy conditions is an interesting challenge, but I would never choose to play under foggy conditions if it didn't help me in some way.
    Thanked by 1konman
  • @LexAquillia Thank you for the legal insight. I feel a bit depressed by it to be honest. My role is a software developer, so I guess they would have a claim I guess. Ugh. I'll need to think how I want to proceed. But thanks a lot for the info. :-)

    @BlackShipsFilltheSky Thank you for the feedback. I like the idea of forcing a player to consider taking "power-downs". Very interesting. It certainly does add a new dynamic and potentially alternate gameplay. Will give it some thought. Cheers :-)

  • edited
    @konman: From what I understand (and you should definitely check with @LexAquillia, PM him) there's a significant chance that you can motivate that your own game development has nothing to do with the company's work, tools, scope of business or market strategy. Therefor they should jump in a lake.

    Contract clauses like this are super shit, I would strongly suggest going over your employment contract to see if something like is in there in the first place - your bosses could just be assuming because they're greedy asshats... I'd personally never sign something that had a "we own your mind" clause.

    If they really are going to try and block you doing something like this, I'd hit them with a bill for all the overtime I'd spent on it and projects like it since I started working there. But I'm an argumentative bastard. Bottom line - don't take it lying down, contracts are negotiations.
  • @dislekcia LOL, I like your anti-establishment spirit. Stick it to the man, yeah! Thank you for that, you're right. Anything in life is negotiable. Thanks all, I'll digest all the useful info provided by the community and have a read what my contract specifies.
  • Contract clauses like this are super shit, I would strongly suggest going over your employment contract to see if something like is in there in the first place - your bosses could just be assuming because they're greedy asshats... I'd personally never sign something that had a "we own your mind" clause.
    @dislekcia beat me to this. Seriously anyone else reading this please please please think hard when you sign a contract like that. IMHO this concept and idea if completely bulls___t. Perhaps if you doing RND and been paid uber stupid cash for your brain skills. The way they pitch this idea is to suggest that your working at the company is an inspiration and everything you do therefore is derived from working there. I just want to see the first person that makes it huge in porn going to the next shareholders corporate meetings to hand over there new fresh IP just as a big fat WTF. -END RANT-
  • @konman, just note you are not only dealing with contract law (if there is a clause), but also the provisions of the Copyright Act as well as established case law. You best way forward would be to get an agreement from the company stating that they have no objection to you releasing the game, nor will they assert any title over it.
  • @LexAquillia I understand. Thank you. I'll try and pursue that avenue then and I'll keep you updated on what happens ;)
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    @LexAquillia so if there were no clause in the contract that mentioned anything about ownership of privately developed products, then does the company still own it by default (because they employ you at the time)?

    Also out of interest, what happens if you get a job at a different company half-way through developing something, and for both companies you sign contracts that specify that the company owns anything you develop privately?
  • I feel your pain. I left a job I enjoyed with people I liked exactly because there was a clause stipulating they owned my after-hours work, and when I went to HR they smiled and politely suggested that maybe I should try to suggest my personal game idea as a project for my company to develop.

    And I worked in the game dev department, so no chance to wiggle out of that by claiming it was unrelated. :/
  • @D3zmodos, short answer yes. As insane as it sounds this was the decision made by the Supreme Court of Appeal in the King v SA Weather Services case. Basically if there even a loose connection between what you are employed to do, and what you do in your spare time, the employer will have ownership of the IP.

    In terms of your second question the first company will still have the "best" claim, the IP ceded to them automatically on creation. There is an argument that any developments that happen at Co. 2 would belong to them, but that would be an unauthorized derivative work, so Co.1 could claim ownership of it (and sue Co.2 for royalties...)
    Thanked by 2D3zmodos garethf
  • That is really concerning for many of the people working as game devs on the side while programming for a living. I know that the Universities own anything that is made as part of an examinable course, and as research conducted on University time, but this sounds insane. Is there a way to protect yourself from this?
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    @hanli Make sure it is excluded or provided for in your employment contract is about the only way I'm afraid. That or a similar case will need to be taken to the Constitutional Court to get the King case overturned. The *good* news is that most employers are not aware of this (hell, most lawyers don't even know) so for like 99% of the time it is a non-issue
    Thanked by 1hanli
  • @LexAquillia so what happens if I contract someone to build a game after hours and pay them? If that's ok, then what happens if I pay the R1 and they buy the game back from me?
  • @tbulford: I would imagine that most contracts that deal with shit like this have anti-moonlighting clauses too.
  • @dislekcia sure but in the case where its all default law and their are no clauses to any effect (As for anti moonlighting clauses I would not sign those either have rejected jobs outright for nonsense like that). I am only asking about the default that @LexAquillia was talking about. I find the idea a company claims ownership of your ideas repulsive at best so any slight of hand that circumvents that is welcome.
    so for like 99% of the time it is a non-issue
    I am pretty sure if someone makes stupid money that 1% will most probably become less. Either way its something worth tackling keeping in mind it doesn't effect me directly.
  • I'm glad I'm studying law, I hear so often that people get screwed screwed by a nasty contract. Sad world we live in.
  • Update: My contract...

    "All software, documentation, data, files, software improvements, or other IT material produced or
    developed by the Employee that is directly or indirectly related to the business of the Employer,
    whether alone or in conjunction with others, during the course of his/her employment, and all rights
    pertaining to such material and the information recorded thereof, are and shall remain the exclusive
    property of the Employer.

    "Any exclusion to paragraph above must be agreed to by the parties and be reduced to writing.
    Where the Employee is uncertain with the regard to the ambit of paragraph above, the Employee may
    approach the Employer for clarification."


    I AM SUCH A FOOL for signing this... aaargh. My bedroom coding has been the only thing keeping me sane all this time and here I was thinking I was not going to be assimilated by the borg...
  • That really sucks. The worst part is that even when you're no longer working for the company, you still can't release your game. Your only hope is to get them to sign it over to you.

    Contracts like this are really unfair. My girlfriend is an artist, and she used to work for FNB as an admin clerk. According to her contract there, anything she painted immediately belonged to FNB.
  • I have a similar proviso in my contract, not exactly the same, but the change is that instead of explicitly stating that whatever I do is their property of my company, it states that if I intend to do any work or be part of any other companies, I need to obtain a letter from HR stating that the company understands and allows my extra-curricular activities, but that I acknowledge it is not in conflict with my work, and will not affect my time at work, and I will not work in it at work. I ind this an amicable solution that can protect both parties.

    Perhaps investigating the potential for such a waiver from both parties is possible (as long as it is truly removed from the job you are employed for, in my case I am a programmer in the banking sector, and my game development is not in conflict with my work). It means you must truly keep your work and hobby apart.

    Well that's how I understand it at least in my situation :)
  • Seriously, I'd just start billing for loads of overtime.

    "Why are you booking so much overtime?"
    "Well, I keep thinking about programming, so according to my contract, that's job stuff! I can't help thinking about this stuff, I just do!"
    "But why book the time?"
    "It says that anything I do is work for you guys, so... You can't have it both ways."

    Fuck em.
    Thanked by 2tbulford ScurvyKnave
  • Have you formally approached them at this point in time? Your contract does say that it is possible to get something excluded.
  • What @dammit said, do not despair until they've actually said no.
  • I realise this isn't helpful form a legal standpoint, but my attitude has always been what they don't know can't hurt you.

    Your game would have to be a phenomenal financial success for them to ever hear of it again. At this point its a hobby, more than anything. And even when you do start making money, they need not know about it.

    Back when I still worked for larger organisations, and was making and exhibiting art I ran into some brief problems around this. I treated it as a hobby until I started actually making money from it. Then when trouble arose I indicated that they were welcome to buy anything they wanted, which would have been great since I was working for the National Gallery at the time.

    Commercial corporates are more draconian, but are mainly interested in control. They need to know that what you're doing after hours doesn't effect your delivery during work hours, that you don't have conflict of interest and that if you happen to do something amazing they can get in on that (this is obviously not a legal perspective).

  • Well I think they are starting to eyeball the games industry TBH. No potential new marketing area is off limits to them as long as money can be made. By approaching them in the first place I was hoping they would assist their employee and discuss legal implications. They did suggest I should bring my "idea" into the company. I don't want to do that because control will be wrested.
    I am not so concerned for that particular game I created, cause I only spent about 6 weekends on it, but my concern is for my bigger plans for the future. So I'm thinking of terminating the contract and trying indie dev full-time for a year or be very careful what I sign in the future. Thanks all for your advice and comments.
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    Lesson of the day? Always read every contract you sign-especially in our old fashioned labour market originally built on quasi-slavery..

    To play devil's advocate a bit, I do get where companies are coming from on the effect on work argument. I'm not saying I think they should have a say on how you spend your spare time, but I understand the concern that it might impact the work they pay you to do if you're not sleeping enough due to side projects. As a developer they also pay you to be creative, and if you're creatively tapped out because of personal work, they're not getting what they're paying for.

    My approach to this whole thing has always been to deal with it before signing for a job and asking how they feel about me working on personal Dev projects. Some have had no problem and given me their blessing, some have said no way, but at least I knew where I stood and could make an informed decision.
    Thanked by 1tbulford
  • @konman, I don't think going full indie is the right decision now either. If you're unhappy at your job, it may be worth looking for a new company with a contract that suits you more and allows you to tinker a while until you have something that is ready to need your full time attention.
  • @konman - I agree with dammit. Maybe check this out:

    http://www.makegamessa.com/discussion/724/the-emotional-tribulations-of-going-indie#Item_2

    was shared a while ago by @Funtastic. Think it is quite relevant here.
    Thanked by 1konman
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    @FanieG That is an interesting article. And it certainly does make some pretty important statements. Thank you.

    This thread has seriously changed my perspective in a good way. For the first time my hobby and my career has been seriously vying for my attention. I'm at a crossroads.

    Also, I guess life is short. If you had enough money to sustain yourself for 1 year and do what you love doing, or make a serious dent in your mortgage. Which one would you pick?

    It's not always about the making/saving money aspects. To do what you love doing is sometimes just as important. That scale can tilt in favor of either depending on where you are in your life I guess. I'm not about to sell it all and live in a tent with my laptop (Although sometimes that thought does seem appealing). I play life too safe... but with risk comes reward they say.

    Anyways I'm rambling. If the darn american economy wasn't sliding again, grrrr. I'd prolly already be lying in that tent coding the next pong clone while dreaming of indie stardom...



  • You don't have to bet all or nothing. Could perhaps pick up a part-time contract or something that still allows you plenty of time to do what you want to, but also let's you not be bleeding money if you live pretty lean.
    Thanked by 1mattbenic
  • Personally? I'd pay the mortgage...

    You don't have to do everything right now. And, like Elyaradine says, going all or nothing isn't the only option.
  • @Konman: Well, if your company is actually thinking seriously about gaming, then why not see what it would be like for them to employ you to build games? The cool part is that you'd get to that point by building games in your spare time anyway, then you'd show them to whoever it was that was making IP-grabs at your stuff and you'd go from there. Either they decide they want to own something and put resources into it, in which case your job description changes, or they don't want to own it and you get that in writing and you're free to continue working on stuff in your own time without the fear of it getting ganked.

    Either way you get to both keep being employed at the same company AND work on games in your spare time. Win?

    P.S. I wouldn't worry too much about your company taking some potential million dollar game away from you - it's highly unlikely that you'll find something like that on your own our of luck (as opposed to after years and years of prototyping) AND 90% of a game's success is down to implementation anyway, if they're just a silly greedy company with no game development experience to speak of, chances are they'll flub the implementation and you get to be paid while learning first hand what not to do with that particular idea - then you can make a proper version of that gameplay or whatever on your own later.
    Thanked by 2dammit mattbenic
  • Personally? I'd pay the mortgage...
    That's assuming there is a mortgage :)

    I don't know where you are in your finiancial life, but I'm in the camp that suggests doing your own thing while it's still financially viable. Trust me It's much harder to take the risk of going solo once you have a mortgage, car, wife, kids, etc to pay for.
    The same goes for time, the older you get and the more commitments you have on your plate, the harder it is to pour crazy hours into gamedev.

    Of course @Elyaradine and @dislekcia both make excellent points. If you can pay the bills by doing part time contract work, great. If you can get your current company to pay you to do gamedev (and potentially work your way to running a gamedev subsidiary of theirs or something) that's possibly even better.
  • @mattbenic - He put the idea of a mortgage on the table :) Besides, in SA isn't it more often referred to as a bond?

    Anyway, I get what you're saying. I guess I'm a little different in that I would love to be able to earn enough to afford a bond right now so that I wouldn't be paying off someone else's through renting :P I'm not a risk taker, and I'm not an entrepreneur by nature, so I'm not likely to become a solo indie developer any time soon.
  • "Seriously, I'd just start billing for loads of overtime."

    Wow, I never thought of that (my company also has the clause in their contract).

    If I billed my company overtime for my personal projects I'd make a fortune! Actually, wait, they don't pay overtime... but they give leave for overtime worked. Doubt it would work though. Possibly a good way to get them to remove the clause :P

    Honestly though, I suspect that such clauses aren't easily enforceable. I personally don't worry about it with my own on-the-side projects.
  • @ScurvyKnave: Clock overtime on side-projects that company wants to land-grab with blanket cause -> Get time off in lieu of pay -> Work on more side-projects during time off, book that -> Get more time off -> Company fixes its greedy contract ;)
  • edited
    Ah, apparently we _don't_ have that clause where I'm at now. I think I recall seeing it from waaaay back in the day when I was at Derivco. It's unfortunately pretty standard in the games industry.

    Some guy who worked for a company called Omgpop (who were acquired by Zynga) left the company rather than working for Zynga when Omgpop were bought out, partially because of that clause:

    http://www.gamasutra.com/view/news/167244/

    I found the comments very interesting.
  • My suggestion would be to approach your company with your game. Put it in front of the highets level manager you can get to and show it to them. Let them either:
    1. Employ you full time to do the game(s); or
    2. Give you permission to continue on your free time.

    Let them decide which they want to do. Unless they see themselves being able to make money from it they are most likely to go the second route. If they decide the second route enter negotiations to get a cut of profits - it is in both parties interest.

    Another idea might be to just do it as a hobby and make the game free. They cant make money from something thats free - in the end the most they can have IP on is your game dev framework you have built.


    A small story....

    Back in 1995 I ran an online (play by email) rugby game called Ultimate Rugby. The game was free to play for the full 5 years it was run. In about 1998 I was contacted by a company overseas looking for someone to build them a rugby match engine to go into a PC based rugby management game. I approached my manager for permissions and got permission to 1. Sell the engine, 2. get paid by the foreign company to visit them for testing (3 weeks) all costs covered. Total income was about R35000 for the 6 months of after hours work. (I guess that was 2 or 3 months salary back then)

    Moral of the story - if you dont try you cant get what you want!
  • I am still trying to sort this out with my company, not sure how to move on :(
  • If I'm not mistaken, @LexAquillia mentioned something to me about there being this weird loophole where games are considered video and media, and not software. So if you're a software developer, making games on the weekend is not crossing your contractual boundaries. But...don't take my word for it. Let's wait for the lawyer to weigh in :)
  • @dammit's right. I've been thinking about it a bit more, and technically speaking (in terms of copyright law at least) games are classified as "cinematographic film" and not software. Therefore, depending on the wording of your contract you may be able to get away with it :)
    Thanked by 1Oneil_CT
  • I am still trying to sort this out with my company, not sure how to move on :(
    Where does the situation currently stand?
  • Lol, "cinematographic film", eh? Law is all about wording it seems? My development on the game has stopped. There has been no further comms regarding the "implications" either. I am very tempted to just wrap it up and launch it before Xmas, especially after I received this enticing mail from MS to phone/store devs:

    "Following last month’s announcement at Nokia World, two new flagship devices are now on sale, the Lumia 2520 tablet and the large screen Lumia 1520, hailed by Engadget as "the best Windows Phone device yet." These new devices, along with the typical holiday consumption spike, may help increase app downloads in the Windows Store and Windows Phone Store.

    This year, our introduction of Windows Store gift cards will make it even easier for users to purchase apps in the Windows Store or Windows Phone Store. As a result of consumer gift card purchases and promotional programs, we expect over $100 million dollars (USD) to be available to consumers using their Microsoft accounts to spend on app and in-app purchases. In fact, new devices available today on AT&T include gift card offers with purchase. Take advantage of this big opportunity and publish or update your apps for this holiday season. "
  • mattbenic said:
    I am still trying to sort this out with my company, not sure how to move on :(
    Where does the situation currently stand?
    I have been told than I can send a mail and they will add it to my HR file. I have no idea where that leaves me but I'm guessing that is a way of making no decision and leaving me to think that they have agreed to it...

  • edited
    Update: I have resigned from said evil corporation and hope to do blissful indie game development in peace and quiet. Amen.

    Edit: Will make games for food or beer. (Preferably beer)
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