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E-views with Boomer

An Interview with Thomas Buscaglia

Can you imagine what it must be like to do something you really like doing such as computer programming and making computer graphics? Suppose you took it a step further and developed those skills even more by taking classes, asking questions, learning and trying things over and over again until you understood it and the arduous and aggravating task of trial and error has given you even more insight into making a computer program that someday you could call a real game. Then let's say you had this great idea on just what kind of game you wanted to create and try to put together. Then you take it a step further and you get a friend or two who know what they are doing to help you code and program and develop this great idea of a game you have. You may even have to put up your house for collateral on a small loan or tap a savings fund you didn't really want to tap and have to go to work and spend the long hours, days, weeks and months (sometimes even years) making, coding, programming and not sleeping much, to finally one day look up and there it is, right in front of your eyes! Your great idea, your dreams. your first game; complete, beta tested and ready to play.

By this time you have so much vested and invested in this project that you feel you just have to find a company that will buy this smoking game and advertise and distribute it for you, as you need to eat for a change! Where do you go? Who do you see? How do you protect this valuable piece of your blood, sweat, tears and creativity? You were smart enough to make a butt-kicking computer game but now you feel so ignorant and vulnerable as it sets there in front of you, mocking you, untouched, unseen and un-known by anyone and the bills just seem to keep coming in.

Sounds hopeless don't it? Well it could be and has been for some, but there is hope for young game developers out there and hope comes in the form of a man, a very smart and learned man who is willing to help you find your way through the massive mountain of mumble jumble and Legalese that sticks to the gaming world and game publishers like a fat tick on a warm dog. You know how to create a game now, but now what? We are going to talk to a man who has helped many developers both big and small, navigate there way through the gaming industries ever present volumes of paper work, legal contracts, royalty rights and the easiest way through this paper maze. He has helped many get through the nightmare with only pleasant dreams. His advice may have even turned Chris Sawyers head and put Chris (and an army of accountants) hot on the trail of millions of dollars that may be owed to him in back royalties by the well known game publisher; Atari.

To set the record straight, my guest does NOT represent Chris Sawyer, nor does he advise Chris personally, I don't even think he knows him. But what Chris Sawyer is doing in court right now is trying to get paid for some back royalties that he claims Atari/Infogrames has withheld from him in royalties on RollerCoaster Tycoon from 1999 to 2003 and according to some analyst that could add up to possibly millions! Thomas Buscaglia is a gaming industry attorney who has been writing and talking about this very thing for quite sometime now. He seems to have a passion for defending the little guy against the big name game publishers who try to take advantage of developers who may not know what is what in this money motivated world. He has written many articles and has spoken at many places about how to protect and get what is yours for game developers, perhaps it was even some of Tom's articles that prompted Chris Sawyer to better check his money trail, who knows. But he certainly has helped many others find their way around in this fuzzy, freaky, funky world of gaming, big money and big gaming publishers. Who is this masked man you ask? Who is this campaigner for the little guy's rights? Who is this person that can make a well known game developer stand up and take notice as well as the freshman in college who only wants to be a game developer someday? Well I have all those answers and more. Join me now as I talk with Thomas H. Buscaglia, Esquire; The Game Attorney, Industry Evangelist, and Hardcore Gamer.

Tom Buscaglia, the Game Attorney, practices technology law in Miami, Florida. In addition to obtaining his Juris Doctorate Law degree with honors from Georgetown University in 1985, he holds a B.A. degree in Philosophy from S.U.N.Y., Buffalo, with honors in Phenomenology and the Philosophy of Law. Tom is admitted to practice in Florida and before the United States District Courts for the Southern and Middle Districts of Florida, the United States Courts of Appeal for the Eleventh and Third Circuit Courts of Appeal and the United States Supreme Court. He is a principal in the law firm T.H. Buscaglia and Associates in Miami, Florida, where he practices law for a living and plays computer games and philosophizes on the side. Tom's firm's web site is www.gameattorney.com

Tom is dedicated to the computer and video game industry, assisting developers around the world in all aspects of their legal and business needs and has been representing game developers since 1991. Tom is a Director of the International Game Developers Association and has been the Chapter Coordinator for the South Florida Chapter of the IGDA since its inception. He is also moderator for the Business and Legal forums on IGDA web site, www.igda.org.

Tom authored the chapter entitled "Effective Developer Contracts" for the book, The Secrets of the Game Business. Tom published a series of online articles on www.GIGnews.com to assist rookie game developers on the legal issues they should consider when starting out in the game industry entitled Initial Legal Issues, What are these games made of legally speaking and Completing your Contract Arsenal and answers business and legal questions regularly on www.GameDev.net. In addition, to help independent developers get started on a solid business and legal footing, Tom recently released the Game Dev Kit, a compilation of information and form contracts that anyone serious about starting their own game development studio should have, that can be found at www.GameDevKit.com .

As FaTe[F8S] Tom is Supreme Warlord of FaTe's Minions, an online gaming "clan" that has been competing in various online competitions since January, 1998 www.f8s.com. A "hard-core" gamer, Tom plays online on a regular basis and has a gamer's appreciation and understanding of the game industry. 

  • Positions and Associations Principal, T.H. Buscaglia and Associates 

  • Executive Director, Interactive Entertainment Institute (IEI) 

  • Executive Director, Games-Florida 

  • President, Dev-Biz 

  • President, BallroomGames 

  • Director, International Game Developers Association 

  • Chapter Coordinator, IGDA South Florida 

  • Advisory Board, Digital Media Alliance of Florida 

  • Advisory Board, Game Curriculum, Yorkville University 

  • Member, Florida Bar, Federal Bar Association, American Bar Association 

  • Admitted, Florida State and Federal Courts, U.S. 11th and 3rd Cir. Courts of Appeal, U.S. Supreme Court 

  • Supreme Warlord, FaTe's Minions

Now you would think with all the awards, accolades and titles that Mr. Buscaglia has chalked up he would be hard to get a hold of and even harder to get him to grant an interview to little ol nobody, Boomer? But to the contrary, my request for interview was answered almost immediately and in no time I was on the phone with my recorder whirring away, talking to one of the nicest, sincere and well spoken lawyers that I have ever had the pleasure of talking to.

So enough of me talking about him, join me now as we let him talk for awhile and see for yourself that someday, even you may want to talk to him personally And why not, he tells me that the first consultation is free! Even I can afford that! Let's get this Interview fired up and rolling!

Boomer: It's a real pleasure to talk to you Tom! You are well known around the gaming community, both online and off, I was looking around on your website prior to this interview and saw that you have spoken at many events and written a lot of articles about the gaming world. I find that very interesting and I'm sure our readers will as well. So if you are ready we'll get started with the first question
Thomas Buscaglia: No problem, go right ahead
Boomer: What is the most common mistake a game developer makes concerning the protection needed to protect and control his work?
Thomas Buscaglia: I think oddly enough that it's the failure to properly secure their I.P. rights initially. And by this I mean specifically that games are for the most part collaborative works. A lot of times these are done through non-employee/employer relationships. Under U.S. law there is a legal doctrine called Work for Hire, which means if you're paying someone as a full-time employee and they create intellectual property during the scope and course of their employment the employer owns it. But often sub-contractors and voluntary contributors often involved in game development aren't full time employees. So, the copyright to that is, by law owned by the person who created that material.

Moreover, the ownership of these assets is not conveyed automatically to the developer when the work is paid for. There has to be a written document assigning all of their rights and interest in that intellectual property to the developer. This is a real common rookie mistake. You know, a bunch of guys get together and they all put their assets together and build a game, then they go out and try to sell it. The problems come up when one guy who contributed some stuff like a year ago and then disappeared, didn't sign over anything. They can't pull his assets out of the game without destroying all their work and they can't sell it because they don't own it!

This sort of thing happens more with people who haven't been through a publishing contract because once you get with a publisher they first thing they say is, 'tdo you own the content of your game and can you prove it? If you can't, they won't deal with you. That's probably the most common one.

It boils down to this - you don't need to be a good business person to make great games. But, you do need to be a good business person to make a living at making great games.

Boomer: I see what you mean, creativity and just good common business sense is a good combination for continued success for a game maker in the game developing world that is growing by leaps and bounds! So I understand what you said Tom and it makes sense to me so far, but my next question would have to be, how is the game developer able to keep his eye on the royalties due him once his game actually gets picked up, published and distributed?
Thomas Buscaglia: (laughing) These are not easy questions!
Boomer: I of course want you to feel free to not answer any question you don't want to answer.
Thomas Buscaglia: No, I don't mind answering it, it's a real difficult question. Under virtually almost every appropriately negotiated contract, at least where I'm involved, there is a provision in the agreement that allows for auditing rights for the developer. This is probably the contract provision that Chris Sawyer is relying on in his case. 

Most games are not self funded but are funded by a publisher. The publisher advances the money to build the game and then the developer gets a percentage of the royalties as the game is sold. The first flow of royalties of the developer's percentage goes to paying back the publisher for those advances. After that any additional royalties above the advances are paid to the developer periodically.

The way it is set up, advances are not refundable. So, once the publisher gives the developer the money, it's their money and they get to keep it. This way if the game under sells, the developer does not have to pay it back. But, if the game oversells, whatever this advance is, from that point forward the developer should be receiving his appropriate percentage of the net revenue. 

There are a couple of interesting issues here. First is accountability. Second, the method used by the publisher to calculate the net revenue. These are primarily number cruncher stuff and are usually difficult for a developer to get a handle on. However, as a developer you have the right to audit the publisher periodically and should. Unfortunately, it's usually a use it or lose it type. So, if you as a developer don't exercise the right to audit, it expires. Usually you have to audit on an annual basis and the audit as to be instituted within three months of the end of the physical year or it's over. 

I recently did an article for Gamasutra about audit rights. I feel that is a very important issue. The reality is that most developers don't exercise their audit rights because they don't want to appear to be overly aggressive. Some, think that their publisher will feel that they don't trust them. Well this is business and trust is a luxury that most folks should not indulge in. I've seen time after time where companies were clearly were clearly in the back-end royalties position and were owed serious money. But the developer simply declined going after the publisher for their royalties because they didn't want to stir it up or because they though it was more hassle than it was worth and that sort of thing. This creates a very business environment where publishers expect developers to not audit and get either sloppy or too aggressive in the accounting practices. Either way it is bad news for developers.

Boomer: Yeah, I can understand how a young or perhaps first time game developer might feel intimidated by the big corporations who are publishing and distributing their game.
Thomas Buscaglia: The secondary issue on that is that it really does engender a predatory business attitude in the publishers and they tend to really not respect the business acumen of all developers because some of them. It may be out of ignorance or choice but the general perception in the industry is that when push comes to shove, most developers are spineless! 
Boomer: (laughing) The problem with that scenario though is that if they are spineless, they may also be penniless and left out in the cold while a big, faceless publishing corporation rakes it all in. Probably a lot of those mistakes are made from ignorance and/or lack of knowledge of not only U.S. and International law but also just a complete lack of understanding how the big corporation publishers, that have armies of lawyers and legal help, operate until it is too late and they have lost perhaps millions in money that was due them. That leads me to my next question, Should a game developer always hire an attorney to help him through the obstacles and hazards of a perhaps sometimes predatory industry, when his game has been accepted by a Publisher?
Thomas Buscaglia: Oh I think he should hire an attorney way before then!
Boomer: (laughing) "Way before then", how did I know you were going to say that?
Thomas Buscaglia:

(laughing) You're asking the right guy here. In some instances I have actually represented developers on based on percentage points, the way agents do, because that's how strongly I believe that they need an Attorney as early on in their business as possible, like from when they're putting their company together. When they're securing their assets from their internal people and third parties, when they are reviewing the license agreements that they are getting from any third party middleware applications that they are using; so they understand what their rights and obligations are in all of these relationships. 

There's no question, guys like me are real expensive. But, it's one of those kind of deals where you can pay me a little now or pay me a lot later. For an example, recently I learns of a developer who terminated an employee and turned him into a contractor. It was at the late stages of a project with only a few months of work left. This experienced developer never had that artist sign a written "work for hire" agreement when he converted him from an employee to a subcontractor. Three months later they submitted that game to the publisher and it was accepted. 

That's when that guy came to me and said that he thought he had got screwed., I explained the situation to him and basically at that point we would have been well placed to send a cease and desist letter to both the developer and the publisher telling them that they are prohibited from releasing this game or they would be in violation of U.S. Copyright laws unless they either removed the work the artist did after he became a subcontractor or paid him big bucks for the rights to use them.

Boomer: That would be a bad situation for a young developer who has everything staked in his one game!
Thomas Buscaglia: A situation like that could not only kill that game, it could also kill the developer. Little things like that, you know, saving a few thousand dollars on attorney fees because you think you can do all this yourself or because you think that Lawyers are blood sucking parasites (I'm not saying we aren't we probably are). You have to always do that cost benefit analysis. Question whether it is worth it to take these risks. The realm problem for most developers is that they do not understand the risks and often underestimate their exposure. So my answer to your question is; usually by the time you have a game accepted by a publisher it's probably too late to hire a lawyer!
Boomer: I know that you as a game attorney have helped a lot game makers make more money then they would have, by listening to you and what you have learned along the way. 
Thomas Buscaglia: Well I'tve already seen people make a lot of mistakes, I've even made some mistakes myself. I would dare say that every time I do something, I learn something which probably means every time I do something, I probably could have done it better. But at the same time I am well into the process at this point. One huge advantage I have with publishers is that they know that they can not "junior" me in the negotiations. "Junioring" is when the publisher tells the developer "well this is what everyone agrees to" or "this is just the way it's done in the industry." They pull that sort of **** all the time with developers. They get nowhere with me. You see I negotiate tons more deals than most developers. Most developers do no more than one or two deals a year. I can easily do 10 times that many. And frankly, it lake a big difference in the negotiation process.
Boomer: I know you are well into the process and that is my point. Even when you are just speaking or writing on what you have learned about the inside of the gaming world you are helping someone, even though you may not be advising them personally or formally. My case in point with a game developer called Chris Sawyer and is best stated by quoting an article in the London Times, "Revenue from Sawyer's games, mainly including iterations of the Roller Coaster Tycoon franchise for PC, is estimated to be about $180 million, and Sawyer has already received about $30 million in royalties, but still lists multiple examples of what he suggests are incorrect deductions from his royalty total. The grounds for the suit were set up in 2003 when Sawyer brought in forensic accountants to audit royalties due to him from Atari/Infogrames, a process strongly recommended by game lawyer Tom Buscaglia in a recent Gamasutra column." So even indirectly your advice is proven to be right and if heeded could save many young budding game developers from making huge mistakes in getting what they should get.
Thomas Buscaglia: Good for Chris, I hope he kicks their asses! I hate it when these guys (publishers) screw my people (developers).
Boomer: Yeah and one figure I heard was he was screwed to the tune of 4.8 million dollars. That's a pretty good screwing I would say! That brings us to the next question, in order to make sure he doesn't get screwed, or ripped off completely, when is it time for a game developer to copyright his game to keep it, or even the idea of the game, from being claimed as someone else's game creation?
Thomas Buscaglia: First of all you can't copyright an idea. The only way you can totally protect an idea is if you don't tell anybody. So, limit the number of people and you let them know beforehand that this is a secret and don't tell anyone else. The only way to protect an idea or a concept is by maintaining it as a trade secret and wrapping it in layers and layers of procedures including when you do need to talk to a third party about it, Non Disclosure Agreements (NDA's) need to be signed. A lot of times game concepts and designs fall into this category of Trade Secrets.
Boomer: Could you give me an actual example of that?
Thomas Buscaglia: Okay, I have a small side company with a friend of mine. We designed and developed design and concept documents to do a game based on Ballroom dancing. Which is kind of a weird thing, but I think a cool thing. Oops now I told you about it. So, I can't now say, "that's a secret." If somebody else wants to go out and base a game on ballroom dancing they can, and I am powerless to do anything about it. But if I had made you sign an NDA (nondisclosure agreement) before we discussed this specific project, you wouldn't be able to either exploit it yourself or tell anyone else about it. That's how you protect ideas.
Boomer: I see how to protect an idea of a game now, but what about copyrighting something you have actually completed?
Thomas Buscaglia: Copyrights apply to the expression of ideas in tangible form. So let's say the main character in my game is going to be a pirate who wears a red feather in his hat and he's going to have large black eyes and a pointed goatee. That's an idea, I can't protect it. But, if I make a drawing of that character, that drawing is an expression of the idea in a tangible form. And, I automatically own the copyright to that work as the creator. I own the copyright on that by creating it. The only exception would be is if you are an employee for someone else and then they own it. 

The creator of the work actually owns the copyright to it when it is created. The rub is you can't enforce it until you register your work with the Library of Congress. Keep in mind this is U.S. law I'm talking here. As a matter of fact, in the U.K. you don't have to register a copyright in order to be able to enforce it, the actual creation of the work itself is what establishes the copyrights. You know, copyrights were actually written into the U.S. constitution because they were already a pre-existing right under English common-law. This goes back to the founding fathers. In general though, what is enforceable in one country is pretty much enforceable in most other countries due to a series of International treaties. 
Boomer: That's great information on copyright and protection of a game developer's creations. It may be even more helpful to the readers and those interested in game developing, to get more information on promoting their games. C, can you recommend any articles or books that might help new budding game developers secure and sell their smoking new game creations?
Thomas Buscaglia: Well, first of all (plug plug) I was involved in a book a couple of years ago that has been republished that's called 'the Secrets of the Game Business't It's a pretty good sort of survey book, it's a lot of articles. It covers a lot of a broad area, but I think there's some good stuff in it and that's probably worth checking out.
Boomer: Did you write that?
Thomas Buscaglia: I did a chapter on Effective Developer Agreements. I did the piece on publisher agreements. But there are a whole bunch of industry luminaries involved in that book. I do have the Game Dev kit but I don't want to plug it because it seems tacky to plug it during an article but I'll plug it anyway.
Boomer: Go ahead and plug away!
Thomas Buscaglia: I put together a Game Dev Kit for this reason. It is a compilation of information and forms for start up developers. Remember the issue I was talking about people failing to secure their intellectual property?
Boomer: I certainly do. 
Thomas Buscaglia: There's this thing that I refer to as a Contributor Agreement. Basically it's a "work for hire" agreement that I expanded to cover employees, independent contractors and voluntary contributors as well. Due to my involvement with the industry I realized there was this huge need out there. I had developed a comprehensive agreement over the years for a series of clients. I even started doing a custom version of the Contributor Agreement for developers for a flat fee of $1,500.00. Quite a discount actually. But for many independent small studios, they felt it was still way too expensive. So, what I decided to come up with a generic version of the contract, you know, a fill in the blanks sort of thin, and sell them for $300, which was a price I felt anyone serious about making game for money could afford. When I started talking to all my friends in the industry they said, well Tom, for $300 you need to give them more than just that. So, I ended up putting together the GameDevKit. Of course, to me the real value of it is still the Contributor Agreement. But it actually has five sections. 

The sections track the progress of putting together a small studio. The first section is on why and how you form a company. The second section has to do with securing your intellectual property rights of your game and that comes with a contributor agreement attached. Okay, now you have got your company and you've got your game that you own (remember, you can't sell what you don't own). So, now what do you do? The third section deals with how to go out and talk to and deal with third parties. It's all about legal issues concerning communicating with third parties and it goes into contractility and nondisclosure agreements, which I refer to as NDA's and has a few different NDA's included to use in different situations. The next section is a sort of primer on U.S. copyright law and has a copy of the copyright application from the U.S. copyright office, attached to it. The copyright application has a really great set of instructions on the back of it. I mean people call me and ask do I do copyrights, I say no, go register it yourself, you don't need to pay me $400 an hour to fill out a government form for you. 
Boomer: Yeah and pay only $30 to file it.
Thomas Buscaglia:

Yeah right. Then the fifth section just has links to everybody that I can think of who might be good for them to go to so it's kind of a nice little packet. I sell it for $295 on gamedevkit.com. There is my shameless plug.

Boomer: Shameless or not I'm glad you made it because this is the kind of stuff I was looking for that will help young game makers start down the road to success a little better prepared. Actually, where can you get the kit was going to be my next question and now you've already answered it.
Thomas Buscaglia: (laughing) Go ahead, I'm sure you've got more
Boomer: Actually, I have taken a couple questions from some of the members on The RCTSpace Network forums and one of them which I am curious about myself is, do you play any games yourself?
Thomas Buscaglia: Yeah sure, how do you think I got in to this?
Boomer: What is your favorite game?
Thomas Buscaglia: I'm an FPS player, primarily an online FPS player. But, I don't play much Counter Strike because I feel it promotes camping. (laughing) I just don't like the CS game play. I started playing Thunderwalker CTF, which is a modification of Quake, in 1997. I was one of the principles who formed the Clan FaTe's Minions on Jan. 11th in 1998. FaTe's Minions is still together and we still compete on a weekly basis, www.f8s.com, I am the supreme Warlord of the FaTe Minions. I don't play as much as I used to, I probably used to play three to four hours a day. Now I play maybe three or four days a week.
Boomer: Have you ever tried playing any of the RollerCoaster Tycoon simulation games?
Thomas Buscaglia: No I haven't personally played it much. I took a look at it and even bought it for my daughter. She really liked it. Of course as The Game Attorney, I try to stay abreast of everything, so I have seen RollerCoaster Tycoon and even messed with it a little bit, but I didn't ever really get into it really deeply, but it seemed cool. I especially liked it when you got to the point where you could actually crash the Roller coasters into the crowds. The time involved in playing RCT keeps me from playing it much, plus I am more attracted to fast pace, multi-player, online games that have a low learning curve.
Boomer: Okay, we know what you like to do in some of your probably very little spare time. Let's talk about something you do in your field of expertise At the risk of being redundant I would like to turn the conversation back to RCT's creator and developer; Chris Sawyer. The talk in the RCT online community right now is buzzing about the up-coming lawsuit being brought against Atari by the games developer Chris Sawyer. It was interesting that your name came up in that article in the London Times about this lawsuit filed in the U.K. courts.
Thomas Buscaglia: I don't know how I got credited from this unless Chris asked me a question, I would have certainly told him the answer. Here's the thing that you have to understand and I probably am going to regret saying this because you are probably going to put it on your forum.
Boomer: (laughing) Probably!
Thomas Buscaglia: Here's what you have to understand, generally if any developer has an issue or something that they want to talk to a lawyer about, I give a free consult to anybody. It used to be an hour but now I try to limit it to twenty minutes or so because first of all it's a good marketing thing for me and the other thing is, a lot of times when people have a question for me all they really need is about ten or fifteen minutes with a lawyer. Getting a few minutes with a lawyer can be a difficult thing. Especially if you do not already know them.

I went to my first E-3 in 1998 and I went to GDC in 1999. I saw a lawyer speaking at GDC in 1999, who shall remain nameless, mostly because I don't remember who it was, but he was from a big San Francisco law firm and he had some interesting issues. I had something come up in my practice six months later and I wanted to just ask him a quick question and further pick his brain on an issue. In my experience lawyers will always want to build relationships with other professionals. I sent this guy two e-mails and I told him I had seen him at GDC, which probably may have poisoned his response. I also left a voice mail. The guy never returned my calls. 

I thought, if I were a developer and I really had a question to ask that was important to my studio that could be really critical to my business, I would have to ask someone else. I guess for some people working with developers is just a way you make a living. With me it's different. Don't get me wrong. I need to make a living too. But if I were just looking for a way to make a living I would be doing personal injury law, I wouldn't be doing this stuff. I don't make a lot of money from this, but I really love it and it keeps me happy.
Boomer: I can tell you love it, it shows. 
Thomas Buscaglia: Well it makes the developers happy too because if they listen to the advice from a good game attorney it gives them more money that they might not of even knew they had coming. I can give you an example, a GDC last March I was sitting at this table drinking shots of tequila with a developer. (I do that a lot at GDC!) His studio had a very successful game but they were not getting his back end royalties -, this was NOT Chris Sawyer by the way. I was so upset by him because he was complaining about it, that I looked at him across the table and said, "Give me a hundred dollars." He looked at me like I was telling a joke and I said, "Yeah give it to me!" He said, well why would I do that? So I told him, look if you're not going to go after your publisher for the thousands and thousands of dollars that they took from you, I figure you don't care about money and you'll give it up, since you're giving away money.
Boomer: (laughing) Yeah he could give me some too while he's at it. Well it looks like Chris Sawyer realized that he was owed a lot also and has taken steps to audit Atari and try to recover what is owed him.
Thomas Buscaglia:

Yeah I'm trying to figure out how I got tied into this thing since Chris isn't a client of mine.

Boomer: In think in the article in the London Times it stated that Chris Sawyer had seen something or read something that made him decide that an audit might be necessary. A team of accountants were then hired and that led to the present pending court case. The Article mentioned you by name and said that you have been talking about and writing about this kind of thing going on in the industry for quite some time now. 
Thomas Buscaglia: (laughing) I don't want to denigrate my impact here, But it appears to be something that rose out of an audit Chris did. I think my mention in the article was because Simon Carless, the editor of Gama sutra was aware of the fact that recently advocated exercising your audit rights and apparently Chris's lawsuit grew out of his exercising his audit rights. Simon made that connection and mentioned my in the article. You would have to ask Chris if weather I actually instigated this, but I have the feeling that since he did a forensic audit in 2003, that if I did have something to do with it, it was over cocktails at GDC 2002. 
Boomer: Well I understand that Chris is not a client of yours and so therefore you wouldn't have any inside information on this game makers case against Atari, but in general, in cases like these, how long does it take to bring a case like this to its conclusion?
Thomas Buscaglia: If somebody comes to me and they wanted to get into something like this and they've already done the audit and we have everything all ready to file suit, it's anywhere, typically from 18 months to 3 years, between filing a lawsuit and resolution.
Boomer: This has been a long interview and I know I have taken a lot of your time and believe me when I say I know how valuable it is. It has been a treasure chest of valuable information for young up and coming game developers and even already established ones. So I sincerely appreciate your willingness to share it with us. That being said, I have just one more question for you before I let you mercifully go. I have noticed more and more games and recently even in the newest RCT 3-D expansion, that there is now actual commercial signs and banners from anything from Mc Donald's to Burger King and everything in between that you can download and add to your game. What role do you think that these in-game ads and commercial logos will play in the future of gaming?
Thomas Buscaglia: I think that in-game ads and the role they play, especially in a game like RollerCoaster Tycoon are probably going to be here to stay and they are going to be here to stay for a long, long time. 
Boomer: The wave of the future?
Thomas Buscaglia: Well yeah, the inevitable, commercialization of everything we really care about, isn't that the American way? I guess what bothers me about it in a sense is, this is all really cool except for the fact that it doesn't lower the price of games it just adds more profit to the publisher. 
Boomer: That's good for the publisher but what does it do for the game developer?
Thomas Buscaglia: The developer would be in a position of where they would get a split. In deals that I do I always try to make sure that any ancillary revenue streams like that are all fifty-fifty. In some games in-game advertising could be so powerful of a revenue stream, that the games would become free! This is similar to what appears is happening in the massive multi-player, RPG games. What they are doing now is, and I think it's pretty widely known at this point, that people are actually going in and mining assets in the game while online. There are companies right now that have teams of people in Asia who do nothing but fish. They go to there little company where they have a little office where they set there on there computer 12-14 hours a day and fish. They look for money and once they get the money they download stuff. There's a company named IGE (In Game Assets) which is sort of like an E-Bay for in-game assets that does this. So this all sounds pretty good, I mean when I first heard about this I thought this is crap, this doesn't mean anything - well I was wrong. It's a fifty million dollar a year business right now! The big buzz I've been hearing for next generation of massive multi-player online games is that the games are going to be free and there's not going to be any subscription charge. What they are going to do is they are going to sell assets in the game and capitalize on trades. So you start thinking like that, would you rather get RollerCoaster Tycoon for free and put up with the fact that your Rollercoaster has to be built in say -  Burger King Park or whatever?
Boomer: Yeah we are already doing that in RollerCoaster Tycoon, we have the options to build a Six Flags park. The newest thing advertising wise though to come along in the game is the option in RCT 3-D to download these ad banners and signs if you want them, but they come pre-made.
Thomas Buscaglia: I think that's pretty cool because if you download them if you want them is then what they are probably doing is they are getting some sort of re-payment from the advertisers when you download it so its almost like a click-to-pay sort of set up - that's really cool. Ultimately I guess if it puts more money on the table, hopefully that will trickle down to either better games for the same price or better games at a lower price and hopefully more money that's not just for the publisher.
Boomer: Well that's about it, I promised I would let you go, so I will but I do want to thank you for sharing some of your time, experience and knowledge with us.
Thomas Buscaglia: This has been very cool and I do hope Chris Sawyer does very well and recovers what is owed him. I don't like it when the creative people get walked on. I understand there are a lot of businesses that are dependent on selling the works of the creative people in the industry but the creative people really do deserve their share.

Thomas Buscaglia has left the house! I hope you have enjoyed this interview as much as I have, I have learned a lot from Tom and now know who to turn to when I make my first smoking game! He seems to be a mixture of a high powered Attorney and Robin Hood or perhaps a legal Superman or Spiderman, fighting the big companies for the rights of the small guy. You can find out a lot more about Thomas and even see what he looks like and all the links and referrals you could possibly want on game development, not to mention his cool little Game Dev Kit, by going to his website at www.gameattorney.com Well, that does it for me, I'm old and getting tired so I'm out of here. I'm headed straight to bed and a good night's sleep. See ya in the forums!

As Boomer drifts off into sleep he starts dreaming, in his dreams images flash by as if in an electric light parade. Big sneering mean faces with the name of big gaming companies embedded on their foreheads, menacing grins of greed on their oily faces In their clawed hands they hold wads of money just out of reach of the little game developers being manipulated like some kind of helpless marionettes or puppets in a dance of greed that is orchestrated by the strings of the big publishing companies that are attached to them.

But then, in his sleep, a smile crosses Boomers face, because in his dream suddenly the evil faces of the big publishing companies turned to panic and concern and the little game developing dancers now danced a dance of joy and happiness, but what really made boomer smile was the fact that there in the spotlight of his gaming world dream stood Thomas Buscaglia, Game Attorney and besides the red cape and smile on his face, there was a pair of sparkling scissors in his hand and Boomer and the dancers danced on through the misty Northwest night.

Good Gaming - Sweet Dreams!