Maybe I’ve just been reading too many youtube comments, but as a game artist, you can’t quite help get the feeling that some people consider you partially responsible for the downturn in the quality of recent blockbuster titles.

I was recently discussing the new GTA facial animation technology with some friends and someone made a comment along the lines of “Meh. It’s a shame people will be praising this, the gameplay will no doubt  suck.”

Hearing a comment like that isn’t uncommon, and nor is hearing support for it. There have been a bunch of memes with a similar attitude flying around the internet for the last few years, so I figured I should give a go at dispelling some of the main ones in the chance for some unity and piece of mind.

Modern games just focus on graphics instead of gameplay

This is by far the most common one to hear, and though there might be some truth in it, it’s just a gross dismissal of the issue. The statement is purposefully ambiguous – as to actually use a word other than “focus” ties people down. For these people graphics have just become a scapegoat for bad design.

Most commonly by “focus”, people mean that more money is being spent on graphics than is justified. While games do have much larger budgets for artwork now – budgets across the board have increased. Programming teams, too, are larger, with a requirement for a much vaster selection of technical skills. These teams have had to deal with increasing expectations from the industry as well. The building of expansive maps and characters, which is often the standard now, isn’t just an artistic burden! Design teams are larger too, with a host of new dedicated positions for mapping, scripting, writing and many others. The idea of this paradigm shift by funding toward “having to be the best looking game” is simply a myth.

Even more to the point – does anyone really believe money can simply be thrown at good game design, and if it was the case, with the kind of sums made from WOW, wouldn’t developers and publishers be doing it already?

All my old favourites were just about gameplay

Recently I went back and looked over some old reviews of one of my favourite games, Populous: The Beginning. I expected it to score well overall, being a fantastic game. But what I wasn’t expecting was the fact that in almost every review it scored 10/10 for graphics.

Thinking about it afterwards, it didn’t seem so odd. The graphics for the time were amazing. Deformable terrain and flowing lava, as well as a beautiful world which felt alive with a host of subtle touches. Thinking about it even more I realized that almost all of my favourite games are in the same boat – Quake, Black & White, Sonic 3, Half Life, numerous others. I couldn’t even think of an example with graphics significantly worse than average. Developers have been pushing both graphical and technical bounds since the beginning of gaming.

Graphics are largely unimportant in a game

I think most people would agree, that almost by definition, gameplay is the most important part of a game. But pretending that graphics are unimportant is simply ridiculous. Atmosphere is one of the key parts of a game, and is deeply tied to the graphical style and quality. Immersion also is important, and while this doesn’t really relate to the number of polygons a game can draw, the consistency of the visuals are hugely important.

Developments in graphics are a hugely important device in opening up doors and new opportunities for game designers. It isn’t just coincidence that the vast majority of games for early systems were very similar, and usually tile based or 2D scrolling platformers.

Perhaps in the near future we’ll see another shift in game design and development, similar to what happened when 3D worlds became a legitimate mechanic. I, for one, want to be around when that happens, not lamenting over my Sega Mega Drive.

I don’t care about graphics providing the gameplay is good

This one is most commonly heard from the die hard fans of games such as Dwarf Fortress and the various MUDs and Roguelikes out there. There are grains of truth in this statement but most advocates seem to just be picking and choosing what they consider to be “graphics” when it suits them.

Gameplay and graphics can’t be separated so easily. Interaction, the key element of games, requires graphics at some level, and if it is impossible for a person to relate to this representation of interaction, the game is bound to fail.

The origin of this meme appears as an attempt to distance oneself from the typical screaming Call Of Duty kid, but just because a game doesn’t look like a generic Gears Of War clone, with bloom and HDR turned up to 11, doesn’t mean it isn’t impressive graphically or technically – often quite the contrary.

A good example is the indie gem Minecraft. Perhaps suprising to some, most artists would agree Minecraft has excellent graphics – and the progammers are reasonably impressed too. The whole game is soaked in atmosphere, the style is charming and consistent. There isn’t much more you could ask for.

Look on the net and you’ll find hundreds of instances of most incantations of puzzle and platformer games. It isn’t a surprise that the most popular version is usually the one with the most charming graphics ( N,  Orisinal come to mind).

Number of polygons might not matter to some people, but the ultimate system for how interaction is achieved, does.

So whose fault is it

One of the common trends I see in great games that stick in your mind, is an approach where by the essence of the game appears to be drawn out from the world. Populous, as mentioned above, is a good example of this, as well as another old favourite, Dungeon Keeper. In games such as this, the world and gameplay go together so beautifully that it isn’t even possible to quantify the gameplay mechanics without including the graphics, the atmosphere, the story and all the rest with it.

It seems that many modern blockbusters have a focus on “features”. Fallout 3, for example, feels very odd to play because it is set in this wonderful rich universe, but the gameplay is still more or less completely separate and abstracted from the setting. In a similar way, you could name a number of other recent titles, that seem like basic first person shooters with a graphical setting, and a number of “features” tacked onto the side – and none of that holds together very well.

Graphics and gameplay aren’t these two brothers competing for attention, and if you intend on making a truely great game, act like the responsible parent and don’t send them to their individual rooms – force them to play nicely together.

This post is the last in the series (see parts 1 and 2) on the Employee Terms and Conditions we use here at Black Company. Here we cover the remaining clauses, which are not exactly games industry specific, but apply to any creative business.

Conflicting Interests

[clauses 10.1 through 10.3, and 14.1 through 14.8]

Oddly, as an independent games developer, we’re not really in competition with our peers in the industry. Rather, we tend to work with them, collaborating where possible to help game ideas come to life, and celebrating their successes. But like any creative industry, the value in a company is in both its ideas, and its team. As such, there are issues which can arise that may cripple a business. A dispute with an employee may arise, causing them to leave the team acrimoniously. Any employee will take with them knowledge of titles under development, they may also have a close working relationship with a third party like a publisher. Such information can be abused such that the company loses out on business, and a healthy development can quickly turn sour. It’s not unheard of for a senior team member to leave, set up a new studio of their own, and not only poach staff from their previous employer, but also use their pre-existing relationship with a publisher to pick up a development deal, while the original developer implodes due to the sudden loss of staff.

In practice, such a situation is rare, and such a drastic failing would only be possible if the situation inside the developer was already problematic. But even on a small scale, such an event can be enough to seriously damage a studio, and so these clauses attempt to make clear what is expected from the employee. To summarise, the employee must a) not be involved (or get involved) in a competitor business, at least without declaring it to the company, b) not interfere with any of the business’s existing business relationships (i.e. no poaching work), c) not attempt to coax any staff to leave the company (i.e. no poaching staff), d) not give away any confidential information that might harm the company and e) not pretend to be part of the company after they’ve left it.

These clauses are more generally referred to as non-compete clauses, and can be difficult to enforce, as it depends on a judgement on what is fair and reasonable to both parties. The final sub-clause (14.8) reflects this, and essentially says that while the contract is trying to be reasonable, if any single part of the contract is deemed to be slightly unreasonable, then rather than rendering the entire thing null and void, the next most reasonable interpretation should be enforced.

This is especially important because employees cannot and should not ever be prevented from working after they have left the employ of a business. For this it is crucial that companies not try to enforce these clauses without good cause, as a loose interpretation of “competing business” would include every other game developer out there, and it is entirely unreasonable to try to prevent an ex-employee from finding work elsewhere in the industry. These clauses are there to get the employee’s agreement that they will not actively pursue a course of action that will damage the company.

Confidentiality

[clause 12.1]

Lastly, it’s worth noting that the employee is bound not only to keep any internal confidential information a secret, but that they are also bound by any confidentiality agreements entered into by the company. That is usually things like platform confidentiality (no talking about closed platforms like Sony and Microsoft’s), as well as any business to business agreements (no announcing to your friends that your team has just landed the next instalment in MegaFranchise, before it’s even been announced to the press that a sequel is on the way). And of course these obligations exist even after the employee has left the company, and there is no limit on how long they must be kept for. It’s also worth noting that if information becomes public through other means, the employee can talk about that – so when MegaFranchise 2 is announced to all and sundry, the employee doesn’t have to pretend they know nothing about it.

Summary

I hope this series has been useful, both to other small developers and to games industry employees alike. I found that, when we started out, all of this information was lacking, and we would have to hire lawyers to get set up. Even then, there are few games industry specific lawyers, so any information you can get for a reasonable price is usually from places which have no idea of the nuances of games development.

Lastly, if you are put off by the legalese in the document as is, you can go here for my rather irreverent but much more succinct summation of each of the clauses in the document.

This post continues on from the previous one on the Employee Terms and Conditions we use here at Black Company. The second part concerns Intellectual Property, an important facet of any game development studio’s work.

Intellectual Property

[clauses 13.1 through 13.6]

Pretty much most of game development is about creating things. Creating content, creating game ideas, and creating code to realise the vision. Often the work is done on behalf of another party – a publisher or other client – who will actually retain the intellectual property of that work. If a developer is lucky, they are working on their own properties, and will retain the IP themselves. But in both cases, it is important that the relationship between any employees and the studio with regards to IP ownership is made clear. I won’t claim to be an IP lawyer, or that our T&Cs cover every facet of IP ownership. But they do lay out a clear basis for where the IP rests. Since each sub-clause covers a different major point, I’ll go through them in detail.

13.1

Basically, any IP created by employees, either on their own or as a team, needs to rest with (be owned by) the business, and not by the employee. Also, there is never a point at which the IP is owned by the employee, and then transferred to the business. All the IP created by the employees in their day to day work is the studio’s. This is not just a nicety for the business, it is a requirement, usually stipulated in all of the contracts with other parties. If you are developing a title for a publisher, the IP is passed to the publisher as part of the work for hire contract between the studio and the publisher. There is no room for some of the IP to be held by the employees, it has to all unambiguously be held by the studio, so that it can all be transferred to the other party.

Note this vital part to the clause: “while working on activities for the Company at whatever location“. One of the most important parts of the IP protection is that it balances the employee’s ability to create, with the company’s need to retain its IP without ambiguity.

I have in the past signed a contract which stated that whatever IP I created, regardless of whether I created it on company time, on company property or not, everything I did was owned by the company by default. Of course that means that any work I did at home, on my own machine, at the weekend, was theirs as well. This is unacceptable to most game developers – we all have our own hobby projects, and it’s vital to our morale and sense of personal creativity that we be allowed to develop those ideas. To have your employer effectively grab those ideas away from you, even if they don’t want them and never use them, such that you have to beg just to get them back, is stifling, unfair, and counter-productive.

I can understand the reasoning behind it: the same contract I signed also had the clause which said that I could be asked to work any hours, in any location, if the business needed it. If the company asserted that only work done during normal hours or on company property was owned by them, then any work I did on company projects on my home machine, or off-site in some way might be considered to be mine rather than the companies, even though I was clearly working on company business.

The phrase “while working on activities for the Company” is key here. IP created whilst working on company activities belongs to the company, regardless of when it happens, or where. IP created under any other circumstances may remain with the employee. While there is still scope for ambiguity, this should be minimised by having a clear separation between work activity and personal activity. Employees may do whatever they want on their own time, including being creative on their own personal projects. If they want to be creative on their own time that’s great, but it should be done outside of the office and on their own equipment, so they are safe from any possible insinuation that their work belongs to the company. In turn, the company can benefit from having motivated and creative individuals who don’t feel that their employers are heartless IP-stealing bastards.

13.2

This is a clause about fairness for the employee. If they come up with an idea or other piece of IP which they think is valuable, but which the company does not, they may ask the company to relinquish the rights back to them, so they can then use them as they see fit. This is often the case with game concepts – a game studio might see dozens or hundreds of game ideas from their team. Some are taken up, some might be taken up at a later date, but some might just be the wrong fit for the business, or just not something that can be made the most of. The company loses practically nothing by giving these ideas back to the employee, but gains good favour from that employee. Crucially, note the “for no consideration” part of the clause. Basically, if the employee asks for it back, it’s most likely they aren’t going to pay to do so.

If any IP is given back to the employee in this way, it should always be done so in writing, to make it clear what ideas are being handed off, and so that there are no repercussions at a later date. For employee hobby projects this isn’t a big deal, but any project that is a potential money spinner might cause legal wrangles at a later date if the relationship with the studio turns sour and the exact IP that was transferred wasn’t well specified.

13.3

Not just intellectual property, but also copyright needs to be transferred. Specifically, the business needs to be treated as the author of any created work, as it pertains to copyright legislation. So in this clause the employee is agreeing to relinquish any authorial rights they have. I’m not entirely clear on the details, but I believe that authors have the right to stop certain ‘detrimental’ things being done to their works by others. Obviously again this is a right which would make things messy unless the employee agreed up front to relinquish this.

13.4

Certain parts of intellectual property protection, such as trademarks, patents, etc. do need the involvement of a creator, in person. This clause stipulates that the employee must join with the business in securing those items, and in protecting the business’s interests (for example if the business needs to litigate against someone else who is infringing a trademark). There are two things that are key to note here: 1) the employee needs to help with these applications even after they have left the employment (crucial since such applications can take a long time), and 2) all the expenses and decisions are the employers (i.e. the employee shouldn’t be financially impacted by this responsibility).

13.5

This is simply a reinforcing clause like 13.4, pointing out that the employee needs to do whatever is necessary to make sure that the IP is assigned to the business properly, even after they’ve left, and that the business should carry any expenses incurred to make it happen.

13.6

This clause is the flip side to IP creation – it requires the employee to ensure, to the best of their abilities, that they aren’t infringing anyone else’s IP. As long as they exercise due care, they should be immune from any legal action directed at the business. That is, the studio can’t turn around and simply blame the employee for any infringement unless it is demonstrably their fault.

Next Time

And that’s it for IP. In the final post in the series, I’ll cover the remaining clauses which are games industry specific.

I agreed some time back to write a post for IndieVision, on the Employee Terms and Conditions we use.  Actually, although they will hopefully be useful to my peers in the indie game developer community, originally I made them publicly accessible as a service to other employees within the games industry. There is always discussion on IP clauses in employment contracts, overtime, and I wanted to show that there were sensible, fair contracts that both preserved the needs of the business but were still amenable to the individual employees themselves. I had hoped that it could be taken by employees, so that any attempt by unscrupulous employers to say “these are standard clauses, and you won’t find a games job anywhere that doesn’t have them” could be rebutted.

Our T&Cs have been ratified by our employment law consultants as being compatible with all current UK legislation, but they did not write more than a few sentences of it. The majority of the interesting clauses are very games industry specific, and on that they could provide no advice, other than to say that the clauses that were there did not affect the contract’s enforceability on unreasonable terms.

There are basically two thorny issues when it comes to employee terms: working hours, and IP ownership, each complex enough to warrant their own posts. There are also some basic company issues, which I’ll cover in a final post.

Working Hours

[Clauses 2.1 through 2.4]

For working hours, there are two main issues: 1) flexi-time/working-hours and 2) overtime. We state that our working week is 35 hours, Monday to Friday. Our office hours are 9 to 5, although in practice I don’t hold our team to that. Flexi-time is a good arrangement, but I believe it should be agreed amongst the team rather than trying to lock it down in the T&Cs. What is important is that teams know what hours they are expected to work, in any given week.

It’s not uncommon for companies to want to specify potentially unlimited working hours, for obvious reasons. The terminology to note, which we also use, is: “the demands of the business necessitate a flexible approach. This may require the Employee to work overtime and/or unsociable hours as required by the Employer”. Obviously this opens the door to massive abuses of the employees. The fact is, this is to cover the employer for when the s&*^ hits the fan. The critical milestone or gold master build absolutely has to ship on Sunday night, and all the stops must be pulled to get it done, or else the consequences for the business are dire. As much as we’d all like to get rid of it, in our industry we play fast and loose, and end up too close to the wire. What this requirement is not, and should never be, is a licence for the employer to have the employee working massive numbers of hours, week after week.

In the UK, the EU’s working time directive should kick in to prevent this, by insisting that no matter what, an employee can’t work more than 48 hours a week. In practice this is averaged over the last 17 weeks, making it somewhat tricky to find out just how many hours an employee is allowed to work next week. In the past there has been an opt-out, which employers have encouraged employees to sign, on the grounds that when they do need those last minute crunches, they don’t want to get caught out because employees have already worked too close to the limit. It’s important to note that a) you don’t have to sign the opt-out at all, b) any attempt or coercion by the employer that implies that you won’t get the job if you don’t sign it is thoroughly illegal, and c) even if you have signed it, you can retract that and opt back in at any point, by giving your employer a weeks notice. It’s all explained very thoroughly here.

I believe quite firmly that the opt-out shouldn’t even be considered. It certainly shouldn’t be mentioned in the T&Cs. I understand that it’s being removed anyway, and UK businesses will have to comply like everyone else. The plain fact is that employees shouldn’t be working anywhere near to the 48 hour limit, so there shouldn’t be any issue for the employer.

So back to our T&Cs – there is a note stating that we may need the employees to work over and above the normal week, but only in an exceptional case, and in those exceptional cases, the limits and consequences are clearly laid out. There is no room for abuse of the employee if the T&Cs are set out well. Exactly how the business chooses to deal with the situation is different for everyone, but it needs to be crystal clear a) exactly what the normal working week should entail, and b) what the employer and employee can expect if they need to work above normal hours.

We are a small business, and can’t afford to pay overtime to get things done. Instead, we operate a time in-lieu policy.

2.3 In the case of overtime, the time spent over and above normal working hours in any given week will entitle the Employee to time off in lieu of work to be done in future weeks. All overtime is at the discretion of the Employer, and must be agreed in advance. No more than 20 hours may be accumulated in any one month, and the time off must be taken in the following month. No entitlement can be carried forward without prior agreement. Any entitlement not taken will be lost.

In practice this gives us a lot of flexibility. If we need to work an 70 hour week one week, it needs to be balanced by not working at all the next week. If we were to work even 5 hours a week over the limit, by the end of the month 20 hours would have built up, and the employee may take them off, or agree to save them up for later. The key point here is that it allows the business to temporarily ramp up when we need to, while limiting the length of time we can do that for, and giving employees the choice as to how they want to handle it. If we need longer term crunch, we have to ask the employees (nicely), to accept the longer working hours. Conversely, the employee cannot simply accumulate a mass of time off in-lieu without the business agreeing to it.

At no point should the employee be working additional hours without an explicit agreement on how they should be compensated for it. Any vagueness in the contract can only lead to dilution of an employee’s recompense. Any promises of bonuses at a later date to offset overtime done now are just theoretical; and employees will often find that the bonus divided by the hours of overtime actually mean they are being paid below the statutory minimum wage for that time.

That’s a long enough post for now, next time around we will cover Intellectual Property.