I know they're probably too busy for side projects anyway, but...
July 9, 2009 2:44 PM   Subscribe

Do video game industry non-compete agreements typically prevent their employees from working on and releasing small games in their own time? I'm thinking of all employees, including developers, testers, designers, managers, and artists.
posted by ignignokt to Sports, Hobbies, & Recreation (9 answers total) 2 users marked this as a favorite
IANAL, but since it's an agreement, it is up to the parties to decide what's included: it depends on what the company expects from its employees. Check with the video game company as to what they expect. A non-compete could be as loose as "don't do the exact same job for somebody else, but anything else is fine" to "you cannot participate in the video games industry except for us".
posted by AzraelBrown at 2:54 PM on July 9, 2009

In electronic entertainment, I've seen many contracts that do prohibit this -- making games is the same business, after all -- but also others where it wasn't included because the job didn't really overlap with anything that could cause revenue siphoning. The "testers" in your example would fit that category, since the only risk there would be stealing prerelease ideas, and that's probably covered by confidentiality rather than non-compete.

But all of the other positions you mention usually come with some non-competitive agreement, since developing a "great game idea" outside the company could be seen as competitive behavior pretty easily. Prohibitions on this are common and, IMHO, reasonable. Creatives are hired for their ideas, often, not for their monkey-factory-hands.

Other common terms that can help in the middle ground: no outside work for profit. No outside work for platform.
posted by rokusan at 2:59 PM on July 9, 2009

It also may not directly prohibit someone from working on their own game, but, in those cases, there's most likely language in which the company declares ownership of anything the employee develops.
posted by Thorzdad at 3:03 PM on July 9, 2009

Every job I've ever started as a programmer (including electronic entertainment/gambling) they've tried to include some sort of a clause in something they try to get me to sign about not competing in the same industry and them owning all your ideas.

In the case of the non-compete, you may have an out for self-published stuff. Many of my non-competes have been of a wording that said I couldn't work for another company competing in the same industry. I think you could easily get a lawyer to convince the appropriate people that a self-published game, even if for profit, isn't working for another company in the industry. You wouldn't have the same protection if you form an LLC or a corporation to collaborate on the game.

The "we own everything you think" clause is usually more problematic. I simply refuse to sign any such agreement until the clause is struck or rewritten. I'll usually take a rewrite that confines the scope of the ideas they own to those relating directly to their business. This requires a lawyer to do right. It's reasonable that they own your ideas relating to their business, but certainly not things that don't relate to their IP.

But, yeah, employers of programmers seemingly invariably attempt to own everything inside your head. I was even asked to sign an agreement for work on an electronic real estate product that said, in so many words, that they even owned any fictional stories I wrote during my tenure there.
posted by Netzapper at 4:04 PM on July 9, 2009 [1 favorite]

The default is yes, but people interested in developing games in their own time just get that clause changed before they sign their contract. (Which may take the form of outlined exclusions to the clause, while the clause still applies outside those exclusions).

I know some people who work at games companies and who also make and sell their own games on the side. Generally it's not a problem to get the employment contract to allow this - what the (day-job) company wants is clear boundaries, no conflict of interest, no extra risks, and no trouble.

(I always make sure there are sensible limits on the non-compete when signing an employment contract.)
posted by -harlequin- at 4:31 PM on July 9, 2009

Typically, yes. Everywhere I've ever worked does this as a matter of course for all development employees. My current contract does have a first refusal clause - so if I were to develop a game I must offer it to my employer first. If they choose not to buy it then I can shop it around elsewhere. Of course, this does give them the freedom to buy it for a crappy low price, or buy it and do nothing so it gets buried.
posted by Joh at 5:44 PM on July 9, 2009

Depending on jurisdiction, even if it isn't explicit in the contract a non-compete agreement may be implied. Or the company may just automatically own anything company-related that you do on your own time.
posted by A Thousand Baited Hooks at 8:05 PM on July 9, 2009

Do video game industry non-compete agreements typically prevent their employees from working on and releasing small games in their own time?

Generally? Yes. This is boilerplate in pretty much any computer based contract. Is this legal/applicable to you and your employment situation? Lawyerlawyerlawyerlawyer.

We might be able to help you more of you clarify if you think you're negotiating an employment contract (red line it, see what they say) or working your way around something you've already signed (Lawyerlawyerlawyerlawyer).

I know a designer who published a comic book while working under a "we own everything you create while you're our employee" contract for a multimedia company. Even though the company had never published a comic book, had gone on record as not being interested in his comic book, or had any publishing interests at all, they successfully gained ownership of the property because of the contract. Only after he had published it and it became popular, of course.

On the other hand 7 times out of 10 no one notices when you cross something like that out of a contract.
posted by Ookseer at 11:28 PM on July 9, 2009

Response by poster: Ookseer, I'm just speculating and am not actually employed by or negotiating with a game company. The idea of doing 3D art professionally someday in the far future popped into my head the other day, and I wondered if that would mean that I'd have to give up working on a pet project.

Thanks, everyone! It never occurred to me that a game company - or any software company - would be open to negotiating non-compete clauses.
posted by ignignokt at 7:02 AM on July 10, 2009

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