I had the honor of speaking at the LOGIN 2010 Conference in Seattle during the week of May 10, 2010. During my panel Tom Buscaglia, Randy Price, Nick Mitchell and I fielded questions concerning legal issues for studio start-ups; as an example we addressed several questions concerning rights ownership, work-for-hire agreements, collaboration agreements, etc.

The panel focused primarily on contracts and rights issues. We discussed the kinds of contracts a developer needs to have in place before and during the development process (collaboration agreements, assignments of rights, licenses, work-for-hire agreements for independent contractors) and the types of deals you can negotiate when immediate compensation isn’t an option (credit-based deals and back-end deals are the usual suspects).

I also sat in on a few panels, lectures and keynotes. One in particular stood out for me. Jason Della Rocca’s talk, “Failing to Succeed”, concerned the need to remain flexible and adaptable as a developer. Developers who rigidly remain married to a single idea or game concept will have difficulty moving forward and will rarely achieve the same success as those who are willing to fail and fail often. Trial and error, fluidity in thought, and having an adaptable nature that isn’t afraid to fail is a more proven recipe for success than the restrictive alternative of constantly fearing failure and taking fewer risks.

You need a similar mindset when committing to intellectual property in your game. It’s wise to avoid the kind of rigid commitment to an idea that will make it impossible for you to complete your game should you have to go without the “perfect name” or the “perfect song”.

Let’s look at a hypothetical: Mysty’s* game studio is developing an online flash RPG that loosely involves a magical school, a series of puzzles, and a riveting conclusion: a tournament between the protagonist and her two rivals. She’s decides to name the game “The Triwizard Tournament” in honor of the ending. Her attorney advises her that this may give rise to a potential trademark claim from J.K. Rowling and her publisher, but Mysty is determined to use the name. After all, none of Ms. Rowling’s books use the name as a title, and it’s so descriptive that it shouldn’t be a problem… right? She releases the game with her chosen name—it becomes an immediate success in the casual games market and soon ports across several mobile systems and social networking sites.

A few months later Mysty’s studio receives a Cease and Desist from the publisher of the Harry Potter novels. She still believes that she is in the right, but the publisher contends that Mysty’s success is based on the confusion the name has created in the marketplace; people purchase and play the game because it seems closely tied to the Harry Potter franchise. Mysty is insulted; in her mind nothing in her game even remotely resembles Harry Potter—it’s not as if that franchise was the first IP to us a school of magic or magical tournaments.

Mysty wants to fight even though her attorney warns her that this may become a long and tedious battle. She might lose. Still, she is committed to the name and won’t give it up. The game has generated a lot of revenue and the brand clearly has value.

Mysty becomes so entrenched in the fight that she’s unable to commit the time to create new content. She spends hundreds of thousands of dollars on legal fees and expenses and there is still no end in sight. The mobile markets and social networking sites that once hosted her game have removed it and the game is no longer generating revenue. Mysty begins to see that her game studio is suffering severely at the hands of this dispute. She becomes jaded and angry with the system that forced her into this fight and eventually quits making games all together.

A more flexible mindset and a conscious effort to make fun games instead of catchy titles would cure Mysty’s woes. The mindset of being married to a name or an idea that closely resembles someone else’s intellectual property will almost always create risks in the future, but it happens all the time. Examining your game from this angle early and coming up with palatable alternatives can easily prevent the kind of downward spiral Mysty experienced. This isn’t limited to trademarks—music, artwork styles, and other game elements can just as easily create similar disputes.

It’s important to remember that for as “right” you think you are the opposing party will usually maintain equal conviction that you’re wrong. Morality, ethics and the law do not always act in unison. It may take years to prove that you’re “right” morally but quite wrong legally. And proving that you are right may distract you from what’s truly important: making games that people want to play.