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Developers Thinking Ahead: Reserve Control Over Adaptations of Your Game

By Krista Hiner · Wed, Apr 10, 2024 5:57 PM

This week marks the release of Amazon Prime’s series adaptation of the beloved Fallout games franchise. Series and movie adaptations of video game intellectual property are by no means new, but in recent years they have become more common. They’re varied, too. 2023’s top games-related adaptations,1 a list that includes Super Mario Bros, The Last of Us, and Gran Turismo, reflect a fairly wide variety in genre, visuals, and target audience. As the trend of game adaptations continues, it is more important than ever that developers plan for potential adaptation of the intellectual property they create.

But who decides what games are turned into series or movies, and who has creative control? Simply put: it typically depends on the publishing contract. It’s not uncommon for a publishing contract to grant the game publisher certain rights with respect to derivative works, adaptations, and/or sequels (we’ll refer to all those, collectively, as “adaptations” in the rest of this article). The contract could grant the publisher exclusive rights, meaning they, and they alone, control the adaptation rights. The contract could also grant the publisher a right of first negotiation, right of first refusal, right of last refusal, or any combination of these rights, before the developer is allowed to grant adaptation rights to any other third parties; in these cases, many publisher contacts fail to specify how a developer can exhaust their obligations before granting adaptation rights to a third party. Meaning: it’s unclear to the developer when they are truly free to grant adaptation rights to someone other than their publisher.

If a developer is not represented by counsel during the contract negotiations, they may not be careful about the implications of such language in a contract. Most inexperienced developers are not thinking heavily about future adaptations at the time they sign a publishing contract. But unless a developer retains control in the contract over their intellectual property, including decisions over how their intellectual property can be adapted in other media, they may not get a say in decisions regarding how their intellectual property is presented to other audiences. In extreme cases, they may not receive any compensation related to adaptations, either.

A simple example is the indie game Five Nights at Freddy’s. FNAF was originally developed (and self-published) by solo developer Scott Cawthon.2 Following the success of the first FNAF installment, he developed and released numerous sequels in collaboration with other developers and publishers. FNAF was adapted into a feature film in 2023, on which he is credited as a writer.3 Given the trajectory of the franchise, and the solo developer’s continued credits and involvement, it’s reasonable to assume that when he contracts with collaborators and publishers, he reserves some level of control over and involvement in adaptations (and, presumably, has shared in the significant revenue that FNAF adaptations continue to generate).

A more complex example is The Witcher, which is currently a Netflix series and video game series, but was originally a book series authored by Andrzej Sapkowski. In 2018, the author sued developer and publisher CD Projekt for its broad use of Witcher intellectual property, from which CD Projekt developed sequels and profited significantly. CD Projekt argued in response that they legitimately acquired the rights many years prior to use the Witcher universe in multiple games via a lump sum payment and the author was not entitled to any revenue share, no matter how successful the sequels were. The case ultimately settled with undisclosed terms.4 Given the publicly available information, it's reasonable to assume that the author did not retain the same level of control over Witcher adaptations as the developer of FNAF did over FNAF adaptations. While the author was not a game developer himself, his story still serves as a cautionary tale to developers about taking care when granting rights over adaptations of their original work.

Developers are cautioned to work with an experienced lawyer anytime they are granting rights related to their intellectual property. In the context of adaptations, developers must look closely at contract terms that govern questions like the following:

  • Who will own the intellectual property (including the developer’s creations) after the contract is signed?

  • What permissions are granted to the other party regarding how they can use the developer’s creations?

  • Can the other party create adaptations with or without developer approval? If so, how is the developer paid for that?

  • Is the developer free to allow third parties to create adaptations

If you are a developer preparing to sign a contract that includes adaptation rights, or otherwise needs counsel on the matter, we encourage you to reach out to the attorneys at ESG Law at for a consultation.

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