Territoire! Territoire! </does a little Territoire dance/>
I'm with Ravenholme on this one!!
I've just had a mason-jar of chocolate espresso for lunch, so let me wax about my love of contracts for a minute. Your eyes may glaze so you might want to skip to the next post, now.
When I draft a NDA clause for an option contract, I usually put in a gag-paragraph to the effect that neither party can talk about the option or negotiations about the option regardless of whether the negotiations succeed or fail. I also assign a realistic "cost" to violating the gag -- a monetary amount based on the potential for bad press (harm to business goodwill/reputation), or the lost potential of better-managed good press. And sometimes to cover damages to partners who have exclusive press channel deals (e.g., say Rock Paper Shotgun gets an exclusive first press release). I also put in a clause asking for attorney's fees in case it's necessary to sue to enforce the gag violation clause -- sometimes legal fees can be higher than the cost of the economic harm for violating the gag!
To be enforceable, the cost has to be a realistic amount proportional to the economic harm (not a penalty fee), but yes, it could be enough to drive a small, under-capitalized operator out of business. (RPS could be paying a lot of money for exclusives! Or a big publisher could be hurt by being associated with a small indie that has also created R-18 games!). I personally wouldn't write that kind of deal, and would strongly urge any client of mine not to sign it, but such things happen.
There's usually a separate clause for publicity rights when certain conditions are met (such as the option being taken and copyrights registered, etc. . .). Generally, once an intellectual property license turns hands, people notice, anyway. Game reporters regularly troll the government IP sites searching the names of game companies to uncover any new properties being registered.
For example, Copyright.gov has a registration for a movie option on Mass Effect. Reporters found out about it from the registration. EA issued a press release when they started to get grilled.
So I like to trigger my publicity clauses based on copyright registration (at the latest) when doing artist deals, even for small, independent artists working through an agent (often times, it's the artist who reveals on his/her webpage about selling to a big manufacturer, like Peir 1 or Hallmark -- huge bragging rights). You need an enforceable contract to transfer the license for registration, anyway.
As far as snipers . . . well, how about ninja assassins? That would be a heck of a penalty clause, but Japan has pretty good freedom of contract, and we know the Carpe Fulgur guys are flying over there every so often . . .
Cheers,
-mra
