A Game Publishing Agreement. How to Negotiate Revenue Share Without Losing Control of Your IP

You spent 3 years building a game. A publisher sends you a 40-page contract. You sign it because you finally want to release the game. A year later, you discover that you do not own the rights to a sequel to your own game, while 70% of the revenue goes towards “recouping marketing costs” that no one told you about.

This is what most first game publishing agreements look like. The studio gives up control over its IP and margins before it has time to understand what it has signed.

There are nearly 500 game developers and publishers operating in Poland, employing more than 15,000 people (source: expo.gov.pl). Most of them-especially indie and mid-sized studios-negotiate publishing agreements without their own term sheet, using a draft prepared by the publisher. The result: a revenue share that is out of line with the market, loss of rights to sequels, ports and the brand, and, in extreme cases, an inability to secure an investor because the studio does not formally hold all the rights required to commercialize the game.

In this article, I will explain what to look out for in an agreement with a publisher, how to negotiate revenue sharing and what to do to avoid losing control over your own project. No legal theory-just a business and negotiation perspective.

Terms you need to know before negotiating

Before you start analyzing the agreement, make sure you understand the terminology publishers use. Below are the key terms-explained in practical rather than academic terms.

The publishing agreement market in Poland

There are no official, aggregated benchmarks for revenue sharing in publishing agreements in the Polish game development industry. Agreements are subject to confidentiality clauses, while public companies disclose only general information about signing contracts-without specifying the actual percentage rates.

The available data is fragmented and comes from current reports published by listed companies and from individual tax rulings. Nevertheless, it provides an indication of the range of terms found in the market.

Known revenue-sharing models

What affects the publisher’s share

1. Level of production financing – the greater the publisher’s financial contribution, the higher its share of revenue
2. Scope of services – marketing, PR, platform certification, localization, QA-each additional service increases the commission
3. The studio’s bargaining position – a studio with a track record of successful titles can negotiate better terms than a newcomer
4. Structure of the MG and recoupment mechanism – the higher the MG, the longer the period during which the publisher recovers its costs from the studio’s revenue
5. Territorial and time-limited exclusivity – the broader the scope of exclusivity, the higher the publisher’s expectations regarding its share

The lack of benchmarks does not mean that you cannot assess whether the proposed terms are in line with the market. It means that you need to understand the mechanisms that shape those terms-and know what to negotiate.

Where studios lose money and control over their IP

Most unfavorable publishing agreements are not the result of bad intentions on the publisher’s part. They result from an imbalance in knowledge and negotiation experience. A publisher signs dozens of such agreements each year. For the studio, it is often the first agreement of its kind.

Below are the areas where studios most often lose out-financially and legally.

a) An unclear or unfavorable revenue share model

The agreement defines the split of “net revenue”-but the definition of “net” can be flexible. The publisher may deduct from gross revenue: marketing, certification and localization costs, platform fees, legal expenses and even internal costs (management and administration).

The result: the studio sees gross revenue of 2 million zł in the report, but after deductions, the “net” amount is 400,000 zł-and the studio’s share is calculated only on that amount.

b) A recoupment mechanism with no time limit

The publisher pays an MG (e.g. 600,000 zł) and then recovers that amount from the game’s revenue. If the agreement does not set a time limit for recoupment, the publisher continues taking its share until it has recovered the full amount, even if this takes years. During that time, the studio does not receive its share of the revenue.

The trap: there is no provision specifying what happens to the MG if the game does not generate enough revenue. Is the MG non-refundable? Does the studio have to repay it? This must be stated unambiguously.

c) Assignment of rights instead of a license

If the agreement provides for the assignment of economic copyright to the publisher, the studio loses control over the game. The publisher decides on sequels, ports, localizations, pricing and distribution.

Under Article 41(2) of the Copyright Act, an agreement covers only the fields of exploitation expressly listed in it. But if the list of fields of exploitation is broad-and it usually is in publishers’ drafts-the studio gives up the rights to every method of commercializing the game.

The alternative: an exclusive license covering specified fields of exploitation, for a specified term and territory. The studio retains ownership of the IP, while the publisher receives the right to distribute it within the agreed scope. The negotiation rule is: “grant only as many rights as the publisher genuinely needs to perform its obligations”.

d) No control over derivative rights

Derivative rights cover sequels, spin-offs, ports to other platforms and adaptations (e.g. films, TV series and merchandise). If the agreement does not expressly address these rights, the publisher may argue that they fall within the scope of the rights granted to it.

Check whether the agreement:

1. Expressly excludes derivative rights from the scope of the license/assignment
2. Specifies who decides on sequels and on what terms
3. Provides for separate remuneration for each new field of exploitation

e) No rights obtained from freelancers and subcontractors

Under Article 74(3) of the Copyright Act, the economic rights to a computer program created by an employee as part of their employment belong to the employer by operation of law. But this rule does not apply to freelancers and subcontractors.

If a graphic designer, musician or programmer working under a B2B contract or a contract for a specific work has not assigned their copyright to the studio in writing, the studio does not formally hold the rights to commercialize those elements of the game.

This is not a theoretical problem. During investor due diligence, the failure to obtain an assignment of rights from subcontractors can block the transaction or result in less favorable terms.

How to negotiate an agreement with a publisher-a playbook for studios

Negotiating with a publisher is not a one-off conversation. It is a process that begins with preparing your own term sheet and ends with signing an agreement that protects both your revenue and your control over the IP.

Step 1: prepare your own term sheet

Never negotiate solely on the basis of the publisher’s draft. Prepare your own document setting out your opening terms. It should include:

1. Proposed revenue share split-with a clear definition of “net revenue” (what is deducted and what is not)
2. Recoupment mechanism-a time limit, the non-refundable nature of the MG and the threshold for switching to the studio’s full share
3. Scope of rights-a license (not an assignment), fields of exploitation, territory and term
4. Derivative rights-the exclusion of sequels, ports and adaptations from the scope of the license
5. Terms for ending the relationship-what happens to the rights, marketing materials and user data after termination of the agreement
6. Red lines-terms that you will not accept under any circumstances

Step 2: define “net revenue”

This is the most common point of dispute. Make sure the definition in the agreement is exhaustive-in other words, that it contains a complete list of costs that may be deducted from gross revenue. Typical permitted deductions include:

Step 3: set milestones with acceptance criteria

Milestones should be specific, measurable and bilateral-in other words, they should define the obligations of both the studio (delivering the build) and the publisher (providing feedback, approving the deliverable and paying the installment).

Each milestone should include:

1. A description of the deliverable (what the studio is to deliver)
2. Acceptance criteria (how the publisher determines whether the deliverable meets the requirements)
3. An acceptance deadline and the consequences of missing it-for both parties
4. A change management procedure-what happens when the scope, schedule or budget changes

The absence of a change management clause is a common cause of escalating disputes. Delays in game production are normal-the agreement should provide a procedure for responding to changes without having to renegotiate the entire contract.

Step 4: secure the right to exit the agreement

The agreement should specify:

1. The circumstances in which the studio may terminate the agreement (e.g. failure to pay an installment or the publisher’s failure to perform its marketing obligations)
2. What happens to the rights to the game after termination-do they revert to the studio or remain with the publisher?
3. The obligation to return marketing materials, keys and user data
4. A transition period (exit assistance)-similar to IT agreements, where operational continuity must be secured when changing providers

Step 5: check the governing law and jurisdiction

Global publishers often insist that the agreement be governed by English or New York State law. This means that, in the event of a dispute:

1. You must conduct proceedings in a foreign language before a foreign court or arbitral tribunal
2. The agreement is interpreted under a common-law system-terms such as “warranty”, “indemnity”, “best efforts” and “material breach” have specific legal meanings that differ from those under Polish civil law
3. The costs of proceedings increase many times over

Under the Rome I Regulation, the parties may choose the law of any country to govern the agreement. However, if all other elements of the situation are connected with Poland (a Polish studio, a Polish company and a Polish team), the mandatory provisions of Polish law will still apply (Article 3(3) of Rome I).

Recommendation: negotiate for Polish law or at least the law of an EU Member State. If the publisher will not agree to change the governing law, ensure that the agreement includes an arbitration clause providing for a neutral forum (e.g. ICC or LCIA).

The impact of distribution platforms on the agreement’s structure

Distribution platforms (Steam, Epic Games Store and consoles) charge their own commission on game sales. This commission directly affects how much remains to be split between the studio and the publisher.

If the publisher is responsible for distribution across multiple platforms, check whether platform fees are deducted before or after calculating the revenue share. With revenue in the millions of zł, this difference can amount to hundreds of thousands.

How to secure your IP before bringing in an investor

During due diligence, an investor will first check whether the studio holds all the rights required to commercialize the game. If they discover gaps, the transaction will stall or the terms will become less favorable.

The project’s IP ownership map should include:

1. A list of all game elements-code, artwork, music, script, dialogue, cutscenes and audio assets
2. The legal basis for acquiring the rights to each element-an employment contract (Article 74(3)), a contract for a specific work with an assignment of rights (Article 53), a B2B contract with an assignment of rights or a license
3. Identification of gaps-elements for which the studio has no documented assignment of rights
4. A remediation plan-putting missing agreements in place, amending existing agreements and obtaining statements from creators

Remember: Article 41(4) of the Copyright Act prohibits an agreement from covering fields of exploitation that were unknown when it was signed. If an agreement with a freelancer signed 3 years ago did not cover distribution under a subscription model (e.g. Xbox Game Pass), the studio does not formally hold the rights for that field of exploitation. This needs to be remedied.

Checklist: 10 points to review in an agreement with a publisher

We can help you with this

An agreement with a publisher is one of the most important documents in a studio’s history. If poorly negotiated, it will cost you for years. If properly prepared, it gives you control over the revenue, the brand and the future of the project.

We support game development studios and technology companies in negotiating agreements, securing IP rights and preparing for discussions with investors. We combine expertise in contract law, copyright law and corporate law-because a publishing agreement touches on all these areas at once.

Our support includes:

1. IP rights audit-we check whether the studio has documented rights to every element of the game (code, artwork, music and script)
2. Term sheet preparation-we develop the studio’s opening terms before negotiations with the publisher
3. Review and negotiation of the publishing agreement-we review the publisher’s draft, identify risks and conduct negotiations
4. Standardization of freelancer agreements-we implement agreement templates that assign copyright across all fields of exploitation
5. Due diligence preparation-we organize IP documentation before an investor comes on board

We do not create documents “just in case”. We design rules where risk or value actually arises-from development through to sale.

Contact us

Before you sign-a summary for founders

An agreement with a publisher is not a box-ticking formality. It is a document that determines, for years to come, how much you will earn from your own game and who will decide its future.

Three things to remember:

1. Prepare your own term sheet-never negotiate solely on the basis of the publisher’s draft
2. Control the definition of “net”-it determines the actual amount of revenue you receive
3. Retain ownership of your IP-use a license instead of an assignment of rights, exclude derivative rights and use an exhaustive list of fields of exploitation

If you are planning to sign an agreement with a publisher, preparing for an investment round or looking to put your studio’s IP rights in order-contact us. We will help you negotiate terms that protect your project and your revenue.

Frequently asked questions

Can a publisher acquire the rights to my game under a publishing agreement?

Yes-if the agreement provides for the assignment of economic copyright instead of a license. Under Article 53 of the Copyright Act, an assignment of rights must be made in writing to be valid. If you sign such an agreement, the publisher becomes the owner of the rights to the game in the specified fields of exploitation. This is why we recommend negotiating an exclusive license instead of an assignment-the studio retains ownership of the IP, while the publisher receives the right to distribute it within the agreed scope.

What revenue share split is in line with the Polish game development market?

There are no official benchmarks-agreements are subject to confidentiality clauses. The available data indicates models ranging from 25/75 (publisher/studio, the Madmind-PlayWay agreement with an MG of 600,000 zł) to 50/50 (publisher acting as a distribution intermediary, a 2025 ruling issued by the National Revenue Information Service). The publisher’s share depends on the level of financing, the scope of services, the studio’s bargaining position and the structure of the recoupment mechanism.

Do I need written agreements with every freelancer who creates assets for the game?

Yes-if you want to hold all the rights required to commercialize the game. Article 74(3) of the Copyright Act grants an employer the rights to code created by employees under an employment contract. But this rule does not cover freelancers and subcontractors. Without a written agreement assigning copyright in specified fields of exploitation, the studio does not formally hold the rights to elements created by external contractors. This is a common reason for transactions being blocked during investor due diligence.

What should I do if the publisher has sent me a ready-made draft agreement?

Treat it as a starting point for negotiations, not as a document ready to be signed. Prepare your own term sheet setting out the studio’s opening terms. Identify your red lines-the terms you will not accept (e.g. an assignment of rights instead of a license, no recoupment limit or exclusivity over derivative rights). The publisher negotiates dozens of such agreements each year and has standard terms that primarily favor the publisher. Your position is stronger when you come to the table with your own proposal and clearly defined boundaries.

How can I secure the game’s IP before bringing in an investor?

Prepare an IP ownership map for the project: a list of all game elements, the legal basis for acquiring the rights to each one, identified gaps and a remediation plan. Put missing agreements with freelancers and subcontractors in place. Check whether the agreements cover all fields of exploitation in which you plan to commercialize the game, including subscription and streaming models. Remember that Article 41(4) of the Copyright Act prohibits an agreement from covering fields of exploitation that were unknown when it was signed-if new distribution models have emerged since the agreement was signed, you need to address them in an amendment.

Can I negotiate for Polish law to govern an agreement with a foreign publisher?

Yes-the Rome I Regulation allows the parties to choose the law of any country to govern the agreement. Global publishers prefer English or New York State law, but that does not mean you have to agree. If the publisher will not accept Polish law, consider a compromise: the law of an EU Member State or an arbitration clause providing for a neutral forum (e.g. ICC or LCIA). Remember that even if foreign law is chosen, the mandatory provisions of Polish law may still apply if all elements of the situation are connected with Poland (Article 3(3) of Rome I).