"Famous Last Words"

The 'Bugger Off' Agreement (July 2007)

Dear Jim:

We're a development studio located in Europe that has had some success with our games (no royalties yet – but strong reviews).

We were contacted by a business development/developer relations guy for an “A-List” publisher who wants to come see what we're doing.

Before he comes in, he told us we have to sign a “Submission Agreement” which he sent over last week.

He says it is standard and everyone signs it.

It also doesn't say anywhere that they will keep our material secret.

Is this really “standard”?

Dear Can't:

That agreement is known among developers as the “Bugger Off” and is intentionally designed to protect the publisher – not you.

It is not, and should not be confused with, a bi-lateral (two way) non-disclosure agreement.

In a typical bi-lateral non-disclosure agreement (commonly known in our industry as an “NDA”), signed when two companies begin discussions to determine whether there are opportunities to work together, each side agrees to hold in confidence, not disclose, and not use for its own benefit, any information or material it receives during the discussions (and sometimes, thereafter).

Each party agrees to return any confidential information of the other upon request of the other side.

Contrast this to the “Bugger Off,” often called a “Submission Agreement” by publishers.

At a time when the developer is being asked to disclose all of its technology, proprietary designs, and projects in development, the “Bugger Off” specifically provides that no confidential relationship is established.

The “Bugger Off” typically goes on to say that the publisher maintains its own research and development effort and is working with other developers, so it may have projects in development, in early design stages, or in its plans that are identical or similar to what is disclosed. The publisher may disclaim any responsibility if ideas, materials, or concepts shown to publisher end up in a publisher product.

Even if the developer who is making these disclosures can prove that its material was given by the publisher to the development team working on the same or similar type game, it may still have no rights. In any event, the bar to developer recovery is set extremely high.

In some “Bugger Off” agreements, there is no restriction on the publisher giving developer's materials to any third parties or sharing materials internally, and there is no obligation to return developer's materials to developer.

So why do publishers reject mutual NDAs in favor of these “Bugger Off” Agreements?

Publishers justify “Bugger off” agreements by claiming they are afraid of developer claims. However, in a typical mutual (bi-lateral) NDA, each party agrees to respect the confidentiality of the other party's material and not share it with others. So long as publisher complies with these terms, developer has no right to recover.

NDA's set a contractual requirement of confidentiality. Material that is disclosed can not be shared or used. Absent such an agreement, there is very little protection for developer's material. That's because copyright only protects the expression of an idea, not the idea itself. The implementation (or expression) of developer's idea in publisher's game is not likely to be actionable. Nothing short of a patent, or a contractual agreement of non-disclosure and non-use, is likely to protect developer.

Developers should be very wary of the “Bugger Off” agreement. If a publisher sends one over, ask for a mutual NDA instead. Make sure the publisher is prohibited from disclosing your information, or using it for any purpose other than evaluation, without your consent.

If the publisher flat-out refuses to offer an NDA, reconsider whether this is really a company with whom you want to be working. It is apparent that they do not respect your work.

If after full consideration, you believe there is a good reason to sign the “Bugger Off,” remember that you have little protection. Be careful what you disclose.

In the end, while we all want to think the best of those with whom we do business, if the worst were to occur, a developer with only a “Bugger Off” would be left in a very bad position.