So you've got a great new game and, having read Publish or Perish?, you've decided against self-publication. Now what?
You've got to submit it to potential publishers, of course.
Now, no one thinks twice about mailing a short story to a magazine. But somehow, it's a different matter with games. People have the idea that game publishers are malevolent fanged creatures dripping with slime, who eagerly pounce upon the unwary game designer and steal his ideas!
Actually, games are protected by the same copyright laws as any other written material; and while there are game companies that make a habit of failing to pay the royalties they owe designers, it is rare for them to steal someone's idea entirely. After all, rates of pay in the field are so low that it isn't worth the legal risk -- it's easier just to pay the fool some pittance. I've only heard of someone stealing an idea once, in the history of the field; and in that case, the designer sued, and received satisfaction.
Here are the legalities, as I understand them. Please be aware that I am not a lawyer; that you might wish to consult one for confirmation; and that the following is in no way to be construed as legal advice. I could get into trouble for offering legal advice.
Forget about patents. Patents are designed to protect inventions -- the internal combustion engine, say, or rotary nail-clippers. Very, very few game innovations are patentable, and those usually involve actual physical devices (such as the pop-up dice popularized by Kenner).
Games are protected under copyright law; and titles can be protected by trademark. To register a trademark, however, you must first publish the game -- which is what you're trying to avoid in the first place, of course.
To protect your work, always affix a notice of this form to it: "(c) Copyright ((current year)) by ((your name))." Type it at the beginning of your rules, and write it on other components.
Actually, this isn't even necessary, legally speaking; you own the copyright whether or not you affix a notice. But it might conceivably deter some idiot who doesn't know any better from screwing with you.
If you like, you can file the necessary papers with the copyright authorities. Actually, you needn't do this if you don't feel like it -- you can always file later, and your rights will still be protected, as long as you can show you were the original author of the work.
Be aware, however, that copyright protection is severely limited. You can copyright text and graphic images. However, someone might reword your rules without substantially changing their intent, and get off scott free. Only the specific wording is protected. Similarly, someone could change your graphics, and, if the change were substantial enough, get away with it.
Don't get paranoid. Although unethical people exist, they are relatively few. Very few game companies will rip you off, for some very good reasons:
Never send any game company your game without first writing and requesting a release form. Most game companies will return your game unread and unplayed if you do not submit it along with a release form.
In your letter, say a little about your game. It is possible the game company just doesn't publish your kind of game; if so, they can tell you so, saving a lot of time all around.
When you get the release form, read it carefully. If it is truly incomprehensible, you may want to get legal advice. Again, however, don't be paranoid. Release forms are standard in the gaming industry. They are, you are quite right, objectionable, unreasonable, and offensive, and no sane artist would long remain in a field dominated by publishers paranoid enough to require such things. Hey, welcome to adventure gaming. They are a standard business practice. If you want to get your game published, you'll just have to deal with it.
The release form should contain a number of clauses. Among them will be something saying that the company may be considering a game on the same subject as yours, and that by agreeing to look at your game the company does not restrict itself from doing a game on the same topic at some future time. Don't panic; this is standard. There are only so many interesting topics for games; if looking at a spy game means a company can never do another spy game, it might as well stop reviewing outside submissions entirely.
Some release forms are more draconian than others. Some sound down-right vicious. If you want to submit a game to a company, you will have to sign one. You are not really signing away a great deal. If the company wants to publish your game, it will still have to negotiate a contact, and nothing you've signed will prevent that.
Here are two things to look out for:
Many would-be designers believe that they must obtain a marketing agent for their games. Except in computer software, there is no gaming equivalent to the book agent. You can undoubtedly find someone somewhere who will agree to act as your agent -- for a fee -- but be forewarned. He probably has no better knowledge of the games industry than you.
Plunge right in. Make the contact yourself. Once you are offered a contract, you will need a lawyer; signing any contract without legal advice is a very bad idea. However, until you get to that stage, you can protect your own interests far better than anyone else.
How do you get in contact with game companies? Go to your local game store and look through their inventory. Look for companies that publish games like the one you've designed. If you have a mystery party game, a company that publishes party games is a good idea. If you have a wargame, a wargame company is what you want. If you have a detailed simulation of the political dynamics of the Weimar Republic, don't contact the publishers of The Mr. Wabbit Game.
Copy down the addresses of some companies that look likely. Take the addresses home, and write, describing your game and requesting a release form.
Some companies won't bother to respond. Some -- including some of the largest -- don't believe that reviewing freelance submissions is worth the bother. Others will tell you bluntly that they are not interested. Others will send you that release form. Those are the ones you want.
Incidently, most companies will want about 3 months to review your game. That may seem like a long time, and it is; but this, too, is standard. You'll have to live with it.
If, however, a company does not either return your game or open contract negotiations within three months, write or give them a call. If they still refuse to respond, assume they are not interested, and submit your game to another publisher.
Whenever submitting a game, always keep a complete copy for yourself. The USPS loses things with depressing regularity; and companies often lose things, too. Don't risk your only copy.
Your game need not be in ready-to-publish form. Indeed, most companies will want to make changes anyway, so having camera-ready copy is a waste of time.
Your game need not look very pretty. Spending some time making a box and carefully executing the board may marginally increase your chances of being accepted, but only marginally. You're better off playtesting your game some more or polishing its rules. Any company worth its salt will play your game if they're seriously interested, and the way it plays will say much more for its potential than how pretty you've made it.
Always be sure your submission includes all components needed to play the game. Also be sure that your rules are as well-written and clear as you can make them.
Suppose a company decides it likes your game and wants to publish it. What can you expect?
First and foremost, don't expect to get rich. I have designed twenty-three professionally-published games; if you add up all the money I've ever earned in the field, including the salary I drew when I was a company employee, and divide by 23, you get about $5000. This is good. Most designers are lucky to earn $2000 from a typical game.
To be sure, some people do become rich by designing games. Some people get rich in the lottery, too. The lottery is probably a better bet.
Do not sell your game for a flat fee. If it becomes a great success, you have sold your heritage for a pittance. Hold out for a royalty. (There's one exception to this rule; few companies are willing to pay royalties on roleplaying adventures or other supplementary products. If you've designed something like this, a flat fee may be all you can hope for. Even so, it doesn't hurt to ask for a royalty.)
A royalty is a payment based on the number of games sold. Royalties are commonly based on "list price" or "gross sales." Be aware of the difference.
Typically, game companies sell games to distributors for 40-50% of the game's retail price. That is, if a game sells in a store for $20, the game company may have sold it to a distributor for $8. If your royalty is 5% of list price, you earn $1 per copy sold; if it is based on gross sales, you earn only 40 cents. Multiply a "list price" royalty by 2 1/2 in order to compare it to a "gross sales" royalty.
You can expect to be offered a royalty ranging from 1% to 3% of list price for board or role-playing games. This is considerably lower than book authors receive. Unfortunately, this is standard in the industry.
Computer game designers often receive considerably higher royalties -- but computer game royalties are usually quoted against gross sales.
If two companies quote you equal royalties, the one which can sell the most copies will make you the greater amount of money (obviously). The number of copies a company can sell depends on the size of its distribution net. This varies tremendously from company to company. A company like Parker Brothers considers any game that sells fewer than 100,000 copies a failure. Avalon Hill, still an important company, considers even 10,000 sales a success. A small hobby games company like R. Talsorian might be happy with 2500 sales.
Money is not your only consideration. You may want to request "right of reversion." This means that the rights to the game revert to you if it goes out of print -- so you can try to find another publisher.
You may also want a time-limit for publication. I once sold a game to a publisher who sat on it for nearly three years before publication. During those three years I didn't earn a penny of royalties. By negotiating a time-limit, you force a company to publish within that time-limit, or revert the rights to you.
You may want to insist that your name be published on the box cover. This is only your legitimate due as the game's creator. However, the larger companies will resist this; they want gamers to identify good games with the company label, not with your name.
You may want to reserve foreign rights. The foreign rights to a successful game can be worth a substantial sum. Few companies will grant you this, however.
You may want to insist on a share of the income from subsidiary rights. Subsidiary rights might include movies, comic books, T-shirts, calendars, and coffee mugs based on your game; or game supplements, expansions and adventures. Some of my game contracts stipulate a (much reduced) royalty for adventures and expansions based on the original game.
For any of this kind of legal maneuvering, you will want a lawyer, preferably one versed in publishing law. In any event, you are well advised to have a lawyer review any contract before you sign.
Be aware, however: if this is your first game, you may not have many options. You may be best advised to accept whatever terms are offered you, and not risk losing the opportunity for publication. A better time to quibble is when you have a proven track record.
Here's the real dirt:
Does this depress you? If you truly believe in your game, it should not.
Game design is an artform, like any other. There are commercial games, and games which are merely critical successes; and even a few games which are sublime products of the human soul. An artist is fired with the joy of his work, and is not derailed by the obstacles.
Anyone who can be deterred from designing games ought to be.
It is the few who cannot who are worth playing.