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Taking the fear out of contracts

Adriaan de Jongh had to understand legalese before he could create a tool to help devs eliminate it; he just didn't expect to enjoy it so much

Last month, Adriaan de Jongh released contract( )--pronounced "do contract"--a free do-it-yourself contract creator intended to let developers hammer out legally binding work-for-hire agreements in plain English. One can only imagine the developer horror stories that could have prompted the need for such a tool. In fact, one might have to imagine them, as the Dutch indie told GamesIndustry.biz this week that in consulting with dozens of lawyers and developers for this project, he found the worst-case scenarios were anything but common.

"Most of what I've heard is fear rather than actual stories, fear of specific situations," de Jongh said. "As I was asking for feedback for contract( ), I found there was more fear than things that had actually happened."

Even the personal experiences that prompted de Jongh to make the tool in the first place seem to have had a limited downside.

"It turns out a lot of people do not use contracts at all... I won't name them here, but there are a lot of big indies that don't use contracts because what they rely on is trust and faith."

"I came to the realization while writing this that the problems I've had were simply because it wasn't clear enough what the contract said," de Jongh said. "All the situations were covered, but we were using very difficult words and very difficult sentences. I really wanted to get rid of that."

In gathering research and feedback for contract( ), the lack of horror stories wasn't the only thing de Jongh found that could be considered surprising. He also discovered that some indies work without contracts out of choice rather than necessity.

"It turns out a lot of people do not use contracts at all," de Jongh said. "For a lot of people, this works very well. I won't name them here, but there are a lot of big indies that don't use contracts because what they rely on is trust and faith. And by making it explicit, people might also start thinking about the gaps and holes and all the things they could do to screw over the other party."

While de Jongh doesn't embrace that philosophy himself, he concedes there's value in it. Obviously, those indies are not the ones for whom he built contract( ).

"I think there's a larger group of indies that simply have no idea what their agreements could go into," de Jongh said. "They have no idea what happens if they're in some sort of disagreement. They have no idea what happens if one party doesn't pay the other party. So in a way, this whole contract( ) thing is very educational."

Those are the people de Jongh created contract( ) for, in the hopes that by making them aware of some of the key points that contracts should specify in clear and simple language, that he can pre-empt future frustrations.

Also surprising? Putting together contract( ) was fun, and he considers himself a better game developer for having done it.

"This started as a project to get rid of legalese, but in trying to understand why it's there and trying to understand how we could get rid of it, I really needed to dive into it," de Jongh said. "And that seemed to be a lot of fun... There's a specific way in which lawyers think, because they have all these mental tools that help them to find these loopholes and exploits. This is exactly the kind of mindset I had to get into as well."

De Jongh said he learned a wealth of concepts that lawyers employ, like the way specific words in a contract can insinuate certain other conditions, or what it means in a legal context to write in the present tense instead of the past tense.

"The funny thing is I've not heard from any lawyer that I should not be doing this because of any liability."

"That's where most of the fun for me came from, trying to word all the situations so they fit with this legal mindset but they were still in plain English," de Jongh said. "It was mainly about finding everything that lawyers think could go wrong, finding all the loopholes and exploits, and trying to make sure we word it in such a way that that doesn't happen."

One final surprise, at least for a number of people he's spoken to about contract( ), is just who was most worried about his legal liability as result of creating the tool.

"The funny thing is I've not heard from any lawyer that I should not be doing this because of any liability," de Jongh said. "But there have been some non-lawyers that have been extremely verbal about the fact that I am putting myself in a very liable situation here and I should have a large, fat-ass disclaimer on the page. Which honestly, I really don't understand. I was talking about that fear, and this is one of those things that people tried to push me into, that I should be afraid, that laws in the US are terrible and I could get sued easily. But I am not afraid at all for that. It's interesting, and I did think about all this. I have some sort of a disclaimer on my page, but it's not written in legalese because that's exactly the stuff I'm trying to avoid. I would deem it hypocritical to write a contract in non-legalese plain English and then have a legalese disclaimer at the bottom."

Disclaimer aside, de Jongh said he's tried to be as cautious as possible with the tool. He's made some minor tweaks based on feedback--for example, references to "revenue share" were changed to "percentage of gross receipts"--and the tool already had 30-40 iteration passes before it went live in the first place.

"Of course I feel very responsible, and I tried to be as cautious as possible about it," de Jongh said. "I spent a long time trying to word the 'about' page and make people try to understand what I'm trying to do with this, what the contract means to them, how they should perceive it and how they should use it."

As such, de Jongh stressed that contract( ) was built specifically with work-for-hire agreements between game developers. While it might cover some other agreements (such as a deal with a marketing agency to provide specific services), he said it shouldn't be used for licensing, publishing, IP agreements, or NDAs, even if certain clauses in the tool allow for those sort of considerations. It was also written with US law in mind, and does not address specific language changes that may be ideal in other countries. Those limitations aside, de Jongh clearly has faith in his creation, as he stressed he uses it for his own contracts.

Latest comments (4)

John Cook Senior Partner, Bad Management4 years ago
"It there are a lot of big indies that don't use contracts because what they rely on is trust and faith.
Dear any Indie reading this article - please don't rely on trust and faith. Any more than you would on Hope or Charity.
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Tim Carter Designer - Writer - Producer 4 years ago
They changed the payment terms to include "Percentage of gross receipts".

Good move!
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Brandi Bennett Attorney 4 years ago
I hate to rain on anyone's parade because god knows we lawyers make things far too complicated sometimes, but the contract clauses used on Mr. de Jongh's site do not actually create a Work For Hire relationship I would rely upon in a court of law. I applaud the effort, but the language isn't correct and exposes the Contracting Company to some pretty big risks.
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NOTE - [This is a comment from the first time this story was published last month. http://www.gamesindustry.biz/articles/2015-02-26-indie-devs-get-do-it-yourself-contract-creator Not sure why it was re-posted, but my opinion has not changed since then...]

Oh the Humanity!

Nice try, but as someone who have been drafting this stuff for independent studios for more years than I care to count, this kind of do it yourself lawyering saddens me. Yes, lawyers cost money...but like I tell my clients, I promise I won't code if you don't lawyer. The old saying is the person who represents themselves has a fool for a client, still rings true. So, while a applaud the intention, I cannot condone this approach. Getting a free development agreement off of a web page gets you exactly what you pay for it...

For the sake of saving a few hundred dollars, not getting the best contract possible is penny wise and dollar foolish. You should take the same care selecting the people you have draft your contracts as you do with those who create your art, write your code or develop your game design!

Plain language is great. But lawyers use legal terms because they are well defined by consistent use in the law and in our industry. The point of the written agreement is to make sure everyone has a clear understanding of their duties and obligations in the relationship. Vague language may, on its face, seem better but it can fail miserably at clarity.

Stating that this for agreement was reviewed and approved by lawyers gives it a level of credibility that is not reflected in the contract itself. To the extent that the lawyers approved this form contract, they ought to step forward and take a beating for doing so. There's a reason attorney's don't claim to know that law where they don't,' just like there a reason to get a lawyer that does know the law where the contract is going to entered into. It's critical to the enforceability of the contract and, thus, extremely important.

While Adriaan certainly seems have the best of intentions and the web interface is clever, IMLO he's doing anyone that uses this a disservice. If you are going to become a professional developer, hire a professional to do your legal work. Sending out a contract like this broadcasts to anyone with industry experience how green and inexperienced the developer is...never a good first impression in a business relationship.

While it might possibly be better than no contract and is for sure a noble effort, it's just better to spend a little at the beginning than to have things go south and spend much more later.

Maybe "doh contract" would have been a more apt name for this...

Tom Buscaglia

Edited 2 times. Last edit by Tom Buscaglia on 17th March 2015 6:37pm

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