Quote: Original post by Deimos72
.....Plus, we don't need funding for this development, it can be "gold" without the publisher or console-company paying us anything at all.

So you have to approx US$30k to pay for the testing, submission and age rating process already? Also what about the cost of marketing?

It is a major plus point that your game is almost finished. It reduces the publishers risk to some degree but don't let that fool you. There are considerable costs involved in publishing a game which is money the publisher is risking.

Quote: Original post by lmelior

For the NDA with the publisher, this one looked pretty good. The collaboration agreement/NDA for contributors would be internally developed. That could be a weakness in a future lawsuit if it is unclear in any way, so one might consult a lawyer there, but I think it could be done without legal advice.

So it'd cost me $85 to become an LLC, register copyright on my video game, and start talking with publishers. Anybody see any holes here?

A few problems with that NDA. To name just a few:

1. Proprietary/confidential information is not defined, and there is nowhere where a reference to the definition of confidential information can be pointed to. For instance negotiations (including what's put on the table or taken off), game concepts, additionally contemplated content, treatments, etc. should all be spelled out in an exhibit or in the document itself;

2. it's unilateral, which means a publisher will likely say "this doesn't work for us, here sign ours instead". Publishers do not want developers they are negotiating with disclosing details of the negotiation-- and it's unlikely that YOUR information will be protected under THEIR NDA;

3. Choice of law is Texas-- what are the chances that any of the publishers in question are in Texas?

4. There's absolutely no statement concerning what happens in the event of breach; no arbitration, no statement of equitable or legal relief, etc. While this isn't mandatory to have rights under the contract, it is much easier to resolve disputes arising from a breach if the procedure and available remedies are spelled out up front;

5. There's no jurisdiction provision. Where can this be litigated? Where should this be litigated?

6. No statement regarding attorneys' fees. This is relevant, since international law's treatment of attorneys' fees (winner generally entitled to attorneys' fees, at least under UK law iirc) doesn't hold true under U.S. law. Which is also why the choice of law provision is relevant.

Be very, very careful when relying on form agreements. There's a 99% chance that it will not suit all of your needs. Furthermore if you present someone with a contract and you can't explain EVERY SINGLE PROVISION in that contract, you may wind up agreeing to things that aren't in your best interest. You will run into this same problem when drafting your collaboration agreement/operational agreement for your business.

Quote: Original post by lmelior
As far as I can tell, if I were in the OP's position it'd cost me $50 to form a domestic LLC in Arizona, USA. Seems cheap, but I can't find any evidence that it'd be more expensive unless I used some middle-man company to do the paperwork for me.

There's a problem with that though. The OP strongly implies that some of their team are not located in the US. Adding international workers can make things tricky. That's why it'd be a good idea for the OP to consult a lawyer when setting up their business.

Deimos,

I think many of the posters have given you enough information to contact a local attorney in Australia to go over local incorporation issues. No need to keep banging on this point. You can set up a virtual entity nearly anywhere but each jurisdiction is different so you should have some with experience in Australian corporate law tell you what is what down there.

As for the rest of your comments my thoughts are as follows:

1. Biz Dev people at publishers rarely say "No" without seeing the pitch. They don't like coming off as the bad guy and so fielding questions about the submission process is a no-brainer. I wouldn't interpret their response as interest in publishing your game.

2. Not being a licensed developer will be a stumbling block as the publishers make reps/warranties to console manufacturers that they use only licensed developers. Forget what other people tell you about the process and contact MSFT about registering to be a licensed developer. I am guessing it is MSFT because SCEE and NOE both allow self-publishing on their digital storefront. As far as I know MSFT is the only one requiring 3rd party publishers for XBLA.

3. Gold Master means the first party has approved the game for manufacture. This of course assumes you have concept approval, obtained ESRB/PEGI rating and localized the game for EFIGS.