IP, Morality, and the Gaming Industry, Part Two: Developers

Over the last few weeks there's been a bit of a ruckus about Martin Wallace's Age of Steam. It started when Mayfair Games announced that they'd be publishing a new, third edition of the game. There was some confusion over why Winsome Games, who helped bring Age of Steam to market, wasn't involved in the new edition. Eventually it was revealed that Martin Wallace and John Bohrer (of Winsome) had decided to go their own ways, and that Wallace was thus reclaiming his premiere game for publication as he saw fit.

The most disturbing--and for the purposes of this article, thought-provoking--element of the whole split was John Bohrer's post to BoardGameGeek, discussing what would be included in Mayfair's third edition of Age of Steam:

It will not have the original Winsome ruleset, nor any other Winsome development work, like the Rust Belt map, point-to-point links, selected actions, etc. Essentially, it will be a different game, just as Railroad Tycoon was a different game. But I am sure that it will sell well with nice bits, just as Railroad Tycoon did.

About Developers

I should take a step back, and talk about developers. They're the folks at publishing houses who take a designer's game and polish it up until it's ready for publication. My general belief and experience is that developers are the great unsung heroes of the gaming world. They usually receive minimal credit, but they're also often the folks that turn good games into great games.

Designers, you see, can often end up too close to their games. Unless they're really experienced in the field (and sometimes even then) they might not be able to let go of ideas which looked really good to them at first, but which are now dragging a game down. Developers, on the other hand, don't have that same emotional attachment and so they can ruthlessly prune a game down to its solid core. (I wrote more about the power of development in my first GG article, The Problem with Indie Games.)

So basically it sounds like Bohrer is claiming the legal right over the development work that he did, and refusing Wallace the right to use it elsewhere.

This all falls into a broad topic that I've covered before, which is IP, Morality, and the Gaming Industry. Like that topic, this one is about intellectual property (IP), who owns it, and the morality of its use. Like that topic, I don't think there are easy answers here, but it's nonetheless something that bears discussion. (Though, to be honest, by the time I finished writing this piece, I definitely had my own kneejerk feelings on the topic.)

Generally I think the ownership problems that arise from the cooperative work done by a designer and a developer can be looked at in three ways: legal, moral, and logistical.

Legal Issues of Development

Development work is ultimately about designing (or changing) game mechanics, and as I mentioned in my previous IP article, game mechanics are not protected by anything but patents, and generally no experienced designer in the industry is going to get a patent. (Seeing the phrase "patent pending" on a board or card game is usually a sure sign to me that the designer is a crackpot.)

So, legally I doubt that Bohrer or any other developer has a leg to stand on when he claims that his work can't be used elsewhere. Unless, of course, the topic of development is covered in a contract.

I've only seen a couple of game design licensing contracts, and I've been pretty surprised that the ones I've seen don't cover the issue of development. I'd think that you'd generally want a contract to state that the rights to any development work go to the designer when he takes the license back, just to clarify the general underlying legalities. Likewise if a developer strongly feels like he should be compensated for his development work, he can make sure that the contract says so.

Bar contract specifics you're stuck with the law, and traditionally the law gives no protection for "ideas", which is what most game design is.

Moral Issues of Development

However, as I stated in my last article on this topic, the legal issues often aren't enough, because if the law isn't right then we should take a moral stand, and I think this is the stickiest part of this whole topic.

Generally there are two common features of development work which (perhaps unintentionally) usually prevent later questions about who controls development.

First, a developer usually works for a larger company. He's taking a salary to do "work-for-hire", and so he doesn't feel that he should be personally recompensed for the work he's doing (beyond his salary).

Second, a designer usually recovers the rights to a game because the publishing company is done with them. Thus, the company no longer needs recompense for the work they've done. They've published the game as much as they wanted to (or as much as their contract allowed them to), and they should feel satisfied that they got the expected value out of the development work they did.

I suspect the problems over Age of Steam arise mainly because it doesn't meet this criteria. First, Bohrer isn't working for some other company; Winsome is his. Second, it's clear that Wallace bringing Age of Steam to another publisher wasn't Bohrer's choice.

This could be because Winsome had a non-exclusive license, in which case Bohrer should have accepted that risk, and that he's now complaining is a mark of unprofessionalism. However it also could be that Bohrer's license was terminated because of some disagreement, in which case the situation is somewhat more understandable. Here, I begin to see a situation where a developer might have moral rights to not have his own work exploited.

Logistical Issues of Development

Unfortunately that runs straight afoul of logistics. Though it's easy to say that Bohrer (or any developer) made contributions to a game, it's much harder to say what they were. Did a developer directly create a system? Did he suggest a change that the designer then implemented? Did he make a suggestion that might already have been part of an earlier design? I would contend that there's literally no good way to say what a developer actually added to a game.

This was pretty obvious when Bohrer made his list of contributions. Among them was the idea of "point-to-point links". Now maybe Bohrer has a different idea of what that means than the rest of the community, but Age of Steam fans were quick to comment that point-to-point links existed in many Age of Steam predecessors, and thus were clearly a part of the AoS gestalt before Bohrer started developing Wallace's most popular railroad game. Now that's just a single point, but it offers a clear example of how hard it is to figure out the logistics of who did what.

And there's another logistical element that makes dividing design and development really hard. If you'll pardon my French, it screws the fans. It means that they can no longer trust how one edition of a game will vary from another. As a Knizia fan I know I'd be pissed as hell if the new Uberplay version of Ra wasn't allowed to have all the features of the Alea version, or if the new Taj Mahal had to be cut back and rebuilt from scratch.

Putting It Together

As I said earlier in this article, I don't think there are easy answers to this topic. I can definitely see reasonable people coming to a lot of different conclusions. However, I've also come to some very definite kneejerk conclusions.

I can see where Bohrer is coming from. As a creator you don't like to see your work used in a way you don't support. So if the dissolution of the partnership between him and Wallace wasn't friendly, I can see why he'd be mad. However, I'm also fairly sure that almost any other developer in the industry would politely hand off their development work at this point, understanding the logistical issues that make it too hard not to. And, I don't think the stand Bohrer is taking makes him look very good to either fans or to future designers considering working with him.

Much more importantly, though, I think this issue points out a big weakness in the industry. A standard gaming contract should make it entirely clear what happens to development work, and properly I think it should go back to the designer--except in the case when the developer's work was never actually published. Conversely I think developers should be getting a lot more credit than they are, because the best developers not only know how to pick good games, but also how to polish them to a fine finish. I'd like to know when a good developer was involved with a project, and when a bad developer was, and I'd like them to get the proper recognition for that good or bad work.

So that's my more-opinionated-than-I'd-intended opinion. Feel free to tell me how I'm wrong.