Licensing developer tools and technology in videogame development agreements

The most common form of development contract between an independent videogame developer (Developer) and a game publisher (Publisher), in connection with any console, computer, wireless, stand-alone, or Internet platform game (Game), is work-made-for-hire. Under such a model, ownership of the Game and related and intermediary work product is transferred to Publisher from the moment it is first "fixed in any tangible medium of expression" as a "work-made-for-hire," "specially ordered or commissioned for use as a contribution to a collective work," or as a part of an audiovisual work. Having reserved its technological base from the broad work-made-for-hire grant in its development contract, it is necessary for the Developer to grant license rights to Publisher to use this material in and in connection with the Game. Without a license and with the reservation/carve out for the Tools, Publisher's rights in the Game, gained under the general work-made-for-hire provisions are incomplete.