Rights of First Refusal in Game Publishing Agreements

Most developers read the royalty section of a publishing agreement three times, then skim past the clause that matters most for their studio’s future: the one that gives the publisher rights to games they haven’t even designed yet.

In plain terms, a right of first refusal clause means your publisher gets a shot at your future titles before anyone else does. How big a problem that is depends entirely on two things: what the clause covers, and how the right works.

Future-title clauses are where the biggest gap opens up between what developers think they signed and what they actually signed. The label at the top of the clause (“right of first refusal,” “right of first negotiation,” “option”) tells you almost nothing. In fact, many contracts contain a clause specifically stating that headings have no legal effect. What matters is the scope of the right and the mechanics of how it operates.

First question: what counts as a “future title”?

Before analyzing what kind of right the publisher gets, look at what the right attaches to. Publishing agreements take two very different approaches:

• Derivative works only. Sequels, prequels, spin-offs, expansions, and other games built on the same IP as the game being published. This is the narrower and more defensible version. The publisher funded the original, so it has at least a colorable interest in what comes next in that universe.
• The developer’s next game, period. Any title the studio develops during the term, and sometimes for a year or two afterward, whether or not it has anything to do with the published game. This version turns a one-game deal into a claim on the studio’s entire pipeline.

A publisher asking for the second version is asking for equity-level control without buying equity. If the clause covers unrelated future works, that alone is worth pushing back on before the mechanics ever come up.

Also confirm the right doesn’t continue indefinitely. If the publisher passes on (or fails to publish) the next title, its rights in future titles should explicitly die there, not roll forward to the title after that.

The spectrum of future-title rights

Courts and contract drafters distinguish several mechanisms, and the differences have real financial consequences. Here they are from least restrictive to most.

1. Right of first look (or first offer)

The developer shows the publisher the new project and gives it a window to make an offer. The developer can reject that offer for any reason and walk away clean. This is the friendliest version, and it mostly formalizes what a studio would do anyway with a publisher it likes.

2. Right of first negotiation

The developer must negotiate exclusively with the publisher for a set period, typically 30 to 60 days, before talking to anyone else. If no deal comes together, the developer is free. The traps are vague good-faith standards and windows that run too long. A 90-day exclusive negotiation is a real cost to a studio that needs funding now.

3. Right of last refusal (the matching right)

The developer can shop the game freely, but before signing with anyone else, the original publisher gets to match the deal. This sounds harmless and isn’t. Other publishers know that after weeks of diligence and negotiation, their best offer can be taken by someone else at the last minute, so many won’t make an offer at all. A matching right doesn’t just give the old publisher an advantage; it shrinks the pool of new ones.

4. Right of first refusal on pre-set terms

The publisher can take the next game on terms that were already fixed in the original contract. Consider what that means: if the first game is a hit, the developer’s leverage should rise sharply. Instead, the publisher locks in the breakout sequel at the deal terms the studio accepted as an unknown. The success discount was given away before the success happened.

5. Right of first option

The most aggressive version. The publisher holds a unilateral option to publish the next title on pre-agreed terms. It doesn’t have to match anyone or negotiate anything; it simply exercises the option. At that point the studio doesn’t have a publishing partner, it has an assignment.

Watch for combinations, too. A right of first negotiation paired with a matching right is common, and it stacks the problems: an exclusive window on the front end and a chilled market on the back end.

Why publishers ask, and why it costs more than it appears

From the publisher’s side, the ask is rational. Publishers absorb real risk on unproven studios, and the future-title clause is how they capture upside if the bet pays off. That is exactly why developers should treat these rights as valuable consideration rather than boilerplate.

The costs show up later:

• Lost leverage at the worst time. The moment your game succeeds is the moment a pre-set-terms clause hurts most.
• A chilled market. Matching rights discourage competing publishers from investing time in an offer they may never get to close.
• Diligence friction. Investors and acquirers treat broad encumbrances on future output as a red flag when they review a studio’s contracts.

These clauses appear in board game licensing deals as well, usually as options on expansions or a first look at the designer’s next pitch. The same analysis applies.

What You Should Do

If the publisher won’t drop the clause entirely, and larger publishers often won’t, negotiate in this order. And yes, you can push back without blowing the deal:

• Narrow the scope. Direct sequels on the same IP only. No spin-offs, no “any game during the term,” no unrelated titles.
• Sunset the right. It should expire after one exercised project, or within a set window after launch of the original game, whichever framework fits the deal. And if the publisher declines or fails to publish the next title, the right ends there; it never rolls forward.
• Require fresh terms. Never let the future title ride on the original contract’s numbers. A first negotiation on mutually agreed terms is worlds apart from a first refusal on stale ones.
• Condition it on performance. The publisher earns rights to the next game only if it performed on this one: hit the marketing spend, released on time, recouped. A publisher who shelved your game shouldn’t get first crack at your next one.
• Kill the matching right. Of everything on this list, the matching right does the most quiet damage, because it poisons deals you’ll never know you lost.
• Get paid for it. These rights have value. If a publisher insists on one, it should show up elsewhere in the deal: a bigger advance, a better royalty split, stronger marketing commitments.

And always read the obligations, not the heading. A clause titled “right of first refusal” may operate as a right of first negotiation, or something far worse, depending on the actual text.