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Publisher Contract Review strategy
member Baby Ghosts 2025-11-10T10:42:09.229Z

Whitethorn Games Contract Review

WhiteThorn made their agreement public in response to Raw Fury doing the same. They are an American indie publisher of cozy games.

Making the game

Typical Indie Contract:

  • Publisher finances development.
  • You submit milestones and get paid as milestones are approved by Publisher.

Whitethorn:

  • Fixed monthly payments for 21 months.
  • No clear date for gold master or publishing the game.
  • No milestones or approvals, but provide access to builds every two weeks.
  • Developer has creative control, but Whitethorn has disability/accessibility input rights.

Pros:

  • Very flexible for Developer.
  • Money not tied to publisher approval of milestones.

Cons:

  • Missing a deadline by 10 days allows contract termination.
  • No post-launch milestone revenue = cashflow issues.

Making it more Indie-friendly:

  • Rework penalties for late delivery (see termination section).
  • Address post-launch cashflow:
    • Extend monthly payments past launch, or
    • Negotiate 80/20 or 90/10 pre-recoup rev share, or
    • Ensure that studio has sufficient cash on hand.

Marketing the game

Typical deals are vague about marketing obligations and whether the publisher must publish the game. WhiteThorn provides marketing budget, by consensus. No guaranteed publishing date; no mention of pricing, discounting etc. Vague mention of merchandising. Very vague about merchandising and porting.

Suggestions:

  • Ask for a marketing plan and attach to the contract.
  • Add clauses that guarantees publishing.

Revenue calculation and sharing

Typically:

  • Publisher recoups development costs, marketing.
  • Rev share during recoup is between 100/0 to 80/20.
  • Post-recoupment split is around 50/50, depending on publisher investment level.
  • Rev share may shift towards developer over time.
  • Payments are made monthly or quarterly.

WhiteThorn:

  • Publisher recoups 100% of development expenses, 30% of PC/console marketing, 100% of mobile marketing.
  • Pre-recoupment rev share is 100/0.
  • Post-recoupment rev share is undefined.
  • Merchandising revenue is either 100/0 for Developer, or 50/50 if sold via Publisher. No one does less than 50/50 after recoup.
  • Porting costs are non-recoupable.
  • Monthly payments.
  • Good developer audit rights.

Intellectual property ownership

Developer retains ownership of IP. Publisher has exclusive licence (transfer of almost all IP rights to the publisher) over platforms/markets covered by contract. What you get in return is royalties. Rights of first refusal/first offer on sequels and expansions.

Suggestions:

  • Negotiate how long until you get IP back - it should be tied to publishing timeline.
  • Net revenue may be calculated differently by an accountant and a lawyer. Be clear.

How easy is it to get out of this deal?

One successful game gives you a lot of bargaining power. (As does having multiple publishing deal options)

Termination Rights and Obligations

Typical Indie Deal:

  • Roughly 5 year duration.
  • Termination if one side breaches the contract.
  • Termination on mutual agreement.
  • Publisher can terminate before launch without needing a reason, but pays a financial penalty (typically 1-2 milestone payments) and has no ongoing rights in the game if it does so.

Whitethorn:

  • Duration is essentially 2 years from first publication on any platform, but duration is somewhat unclear.
  • Both Publisher and Developer can terminate at any time on 60 day notice.
    • No penalty for Publisher doing so.
    • If Developer does so, continued payment of rev share for 24 months.
  • Developer or Publisher can terminate if the other side breaches and that breach continues for more than 10 days.

Making the contract more indie-friendly:

  • Clarify the duration of the contract.
  • Extend the 10-day notice period to 30 days for termination for breach.
  • Clarify the penalty for termination without cause by both Publisher and Developer.
  • Add developer termination rights for failure to publish.
  • Specify what happens on termination in greater detail, especially ports.

Risk allocation

Typical Indie Deal:

  • You're on the hook for allegations of IP infringement, or other problems with the game.
    • This is a low-risk, high-impact clause
    • Patent trolling is no longer common
  • Get insurance! Especially if you have more than the current IP

Whitethorn:

  • No promises regarding bugs and viruses, IP infringement warranties are really generous. Negotiate a qualifier.

Pros:

  • Very reasonable risk allocation for the Developer.

Cons:

  • None, really.

Making the contract more Indie-friendly:

  • These are all low-risk, high-impact clauses.
  • But overall, take these as-is.

Final thoughts

Raw Fury's contract in a word: Sneaky

Whitethorn's contract in a word: Sloppy

Bottom line: Whitethorn is still the most indie-friendly contract he has seen to date. Whether compared to Raw Fury or anyone else. Exhausted supply of public contracts - Raw Fury took a lot of flak online for theirs and no one else is really coming forward. Montreal indie contract idea.