A few weeks ago, when a portion of Capcom’s contract with Sony for Resident Evil Village circulated on social media thanks to ongoing digging into the Capcom data leak, a lot of folks got rather upset. To many who don’t stare at legal documents for a living, a portion of these papers seemed to suggest Sony paid Capcom to make the game effectively worse on other consoles, holding back features so that the PS5 version would look good. Another tweet suggested that Sony paid to have the PC version of Monster Hunter World delayed.
It didn’t take long for lawyers and other games industry experts to step in and reassure everyone that this was utter nonsense.
These accusations revolved around something called “parity clauses,” a standard inclusion in many games industry contracts between platform holders like Sony, Xbox, Nintendo, and some of the PC game stores. Parity clauses are so boring that of the three legal experts and two publishers I asked for comment for this article, multiple were baffled I was asking at all, with one of them telling me that asking them about parity clauses was the equivalent of asking them if I had copper PVC pipes under their sink, or asking them about the weather.
But while they are a standard part of the day-to-day for many games industry folks, understanding parity clauses does provide an interesting bit of insight into one of the ways publishers and platform holders try to protect their own businesses and ensure everyone playing their games has a good time regardless of platform.
What are parity clauses?
Broadly, parity clauses exist to ensure that the things you buy are roughly the same no matter where you buy them. Parity clauses exist in a lot of other industries beyond gaming, with Gamma Law managing partner David Hoppe offering the hotel industry as an example: a “rate parity” clause might require a hotel to match the lowest room rate they provide to other online travel agencies.
In the games space, Whitethorn Digital CEO Dr. Matthew White offers a retro example:
“In the 90s, games could appear dramatically different on two different systems and be sold for the same price with the same SKU,” he said. “…I mean, you had dramatic graphic and audio differences between systems. Sometimes it’d be whole features missing and things. And so I think that’s what console manufacturers today can easily look back on. No parity means that if a developer encounters some kind of framerate hitch on PlayStation for whatever reason, instead of going and seeking out help from the platform to resolve that, or working with their technical support, they just release it that way.”
[ignvideo url=”https://www.ign.com/videos/2020/11/12/ps5-livestream-graphics-comparison-for-nba-2k21″]
Parity clauses can cover a lot of different aspects of a game. As technology and gaming attorney and counsel to Stein IP, LLC Marc Whipple put it: “First and foremost it’s going to be about player experience parity. Significant features, unless they’re just not available on a particular platform for technical reasons, have to be comparable across all platforms. Content has to match up (no leaving out significant quests or stories or characters or whatever.) DLC, support/backend if the developer is providing those, etc come after that. And of course if the versions are meant to release at the same time, that will be provided for as well. But mostly it’s about consistent experience.”
Games industry attorney Angelo Alcid also mentioned price parity clauses, suggesting that platform holders might ask that games be sold at the same price on every storefront. But he added that price parity clauses are currently receiving scrutiny from the EU and now US governments and “are considered by some to be anti-competitive,” meaning they may be going out of style.
Who signs parity clauses?
Parity clauses are traditionally signed between platform holders and publishers. So the three console makers, plus PC storefront owners like Valve and Epic Games, all have parity clauses included in contracts with publishers who want to put games on their stores. They’re in basically every contract in some form, though the specifics will differ.
An anonymous publisher I spoke to who was familiar with parity clauses told me the publishers with several games will frequently sign a blanket agreement with a platform holder that covers all their games over a certain period of time and applies to all of them. Meanwhile, Whipple mentioned that very small independent developers might be less likely to sign them, especially where the developer is fulfilling the same role as the publisher, or where only one game is in question rather than a portfolio of multiple titles.
[poilib element=”quoteBox” parameters=”excerpt=In%20the%2090s%2C%20games%20could%20appear%20dramatically%20different%20on%20two%20different%20systems%20and%20be%20sold%20for%20the%20same%20price%20with%20the%20same%20SKU.”]
And Whipple had another group of people to add to those in gaming interested in parity clauses: license holders.
“If I license a property like Star Wars or Marvel Heroes or whatever, that licensor is going to have [sic] signoff on every licensed game,” he said. “And they’re either going to have explicit parity clauses or they’re going to insist at signoff that if Platform A version is awesome but Platform B version sucks, either Platform B version doesn’t launch, *neither* version launches until they’re both approved, or they can just pull the license altogether.”
It’s also worth pointing out that parity clauses often interact with exclusivity deals in relevant ways. Alcid suggested that parity clauses can occasionally inadvertently create exclusivity “in a roundabout way.”
“If a dev/publisher really wants to release on a particular platform, but maybe doesn’t have the resources to develop several versions in parallel, they may end up only developing for the platform that is pushing for release parity,” he said. “Conversely, such a dev/publisher may find that parity clause off-putting enough to decide to go exclusive on another platform altogether, or may have already released the game in some form elsewhere and think it isn’t worth the trouble trying to open a dialogue around an otherwise-disqualifying parity clause. In this latter case, the parity clause ends up inadvertently causing exclusivity for someone else.”
But while exclusivity deals are a separate thing, platform holders who want the business of certain publishers may be willing to bend their parity rules to get their hands on a really juicy game for their storefronts.
Who enforces this stuff?
One thing everyone I spoke to was clear about was that while parity clauses are important, they aren’t exactly well-enforced. Alcid recalls Microsoft being criticized around the early days of its ID@Xbox program for enforcing release date parity for its independent partners, but notes that it’s since softened its stance.
Some of the lack of enforcement is intentional, and most is for the better. One obvious reason why parity might not be enforced is that it’s impossible. As an example, White suggested that a Nintendo Switch is never going to be able to match the performance capabilities of an Xbox Series X, and a mobile phone isn’t going to match either. Furthermore, a game released on all three systems will inevitably have slightly different control schemes on each, as well as possible shifts in UI or other small tweaks to account for the inherent differences between platforms. This is normal, and those I spoke to said that the industry is largely fine with these differences.
In other ways, that lack of enforcement is less driven by necessity, and more chalked up to an “everyone is doing it” attitude. Alcid told me that feature parity is pretty important to everyone involved — cross-saves, language options, and so forth — but “content” can be a bit murkier.
[ignvideo url=”https://www.ign.com/videos/2020/06/25/spider-man-in-marvels-avengers-ign-now”]
“The ‘content’ piece in particular can come into play with DLC and other add-ons as well, preventing a game from releasing platform-specific content for someone else,” he said. “Like Spider-Man only being in the PS4 version of Avengers — if Microsoft were still particularly concerned with their parity clause, they might have taken issue with that.” For the record, Alcid was not referencing any specific knowledge of Microsoft’s contract with Square Enix for Avengers; this was just a hypothetical example.
The anonymous publisher I spoke to noted that this is why we sometimes see timed exclusives, or different exclusive content on different systems.
“They might do something where the special DLC pack that comes out as a player incentive is exclusive, but only for the first six months,” they said. “And then they eventually bring it to the Xbox. And then by doing that they have kept their commitment to have parity. Or sometimes they will claim to have given parity by giving something special to Xbox that PlayStation 5 doesn’t get. But in order to keep parity with Xbox, they give Xbox consumers a special bonus thing of some sort also.”
Those I spoke to also mentioned that lax enforcement is usually the reason why occasionally games do come out that are a little bit worse on one console or another at launch. In these cases, while differences can be noticeable in comparison footage or to media outlets and players looking for them, as long as the disparity isn’t so stark that one set of players is clearly having a horrendous time of things, it’s not worth a company taking legal action over. Usually, some post-launch patches end up clearing things up anyway. And if you’re already rushing to the comment section to remind me of whatever game you just thought of that was significantly worse on one platform, know that there are always going to be outliers. This is just how most games work.
[poilib element=”quoteBox” parameters=”excerpt=We%20want%20to%20avoid%20the%20fast-food%20burger%20effect%2C%20where%20the%20burger%20in%20the%20ad%20is%20this%20beautiful%20thing.%20And%20then%20you%20get%20it%20and%20it’s%20lumps%20of%20garbage.”]
All that lax enforcement aside, though, both publishers I spoke to suggested that they themselves and the publishers they know generally will self-enforce, and for good reason. It’d be terrible PR, White told me, for a game to come out on PS4 and Xbox One and be an awful, messy experience on Xbox and a good one on PS4. Not only would Microsoft be mad and be less interested in working with the publisher in the future, but players would also be upset, and they’d risk losing a chunk of their audience.
“Sometimes this does mean that you do have to intentionally delay a game on one console to match the parity on the other console, but that’s not because you’re trying to take a dump on gamers on one system or something,” White said. He told me that in his experience, publishers will plan marketing spend and PR around a simultaneous launch. In a scenario where a game is struggling to, say, hit a framerate bar on PlayStation 4, it’s unlikely that Sony is breathing down their neck to delay both that and an Xbox One version of the game. It’s far more likely that the publisher makes the call to delay them both to be sure the game stays in budget.
“In that scenario, we have [a few] main motivations that come to mind and parity clauses are not one of them. One is, we want every person who sees [our] ad to go to whatever console they own and have a similar and high-quality experience. We want to avoid what I call the fast-food burger effect, where the burger in the ad looks like this meticulous, beautiful, well-crafted thing. And then you get the burger and it’s something that somebody threw into a bag, and it’s just lettuce and lumps of garbage. That’s what we want to avoid.”
How do parity clauses impact us?
The people I spoke to had mixed responses to how parity clauses actually impact consumers. Both White and the anonymous publisher felt they were largely consumer-friendly, and that the current dynamic of publishers doing their best and platform holders avoiding rigid enforcement was, for the most part, working well enough to ensure games weren’t launching with awful parity discrepancies (though they acknowledged there were always occasional exceptions.)
“Consumers have had lots of instances of dealing with a terrible port of a game to a platform,” the anonymous publisher said. “And what these [clauses] are really there to prevent is for watered down, cut down versions of these games — and it’s not perfect, it’s not always going to stop every version of this from happening. But the fact that publishers sign these agreements and take them semi-seriously and have to commit to delivering a comparable experience across the platforms, means that you’re not going to have a game as often that runs great on one platform, but then is just missing everything and has been cut down to nothing on some other platform.
“It’s very likely that if these clauses didn’t exist, even more people would try to take that route, instead of doing all the hard work to actually get a difficult feature to work on Switch or Xbox, they might just cut it and then those consumers would never have that feature.”
[ignvideo url=”https://www.ign.com/videos/2021/05/07/resident-evil-village-launch-trailer”]
The legal minds I spoke to had a different take.
“Like exclusivity agreements, I think release parity clauses are something that platforms want but consumers generally don’t (outside of people cheerleading “their” platform at the expense of others),” he said. “When strictly enforced, they end up limiting the availability of games and keeping them out of reach of people who may not be able to afford one of each new console and a viable gaming PC, and I’m sure there’s no shortage of stories of (particularly smaller) devs that end up releasing on only certain platforms as a direct result of the existence of these clauses.”
Hoppe pointed out that parity clauses do create some friction for smaller developers, suggesting that such clauses “force them to prioritize one platform over another,” and limit their potential revenue sources.
He added that they can also create some friction for players, though he said that a good portion of this was due to perception rather than to actual problems. “Parity clauses can lock player bases out of games either for a set period of time or forever. By now, most players are used to games that are indefinitely console-exclusive, particularly in the case of games that are developed by first- or second-party developers (second-party developers are owned by first parties).
“However, games that are timed exclusives or have console-exclusive content are often perceived as ‘unfair’, despite the fact that there is usually a good reason for the first party and developer to have come to that arrangement, such as the first party having provided financial or promotional support. And despite such negative perception, delayed releases can work in favor of the affected player base as the developers have time to remove bugs or add new features to improve the play experience over the period of the delay.”
So what about Resident Evil: Village?
To go back to Resident Evil: Village and the parity clause highlighted a few weeks ago, all this is to say that the lawyers and business folks saying that there was no cause for alarm were absolutely right. With the caveat that no one I spoke to was willing to comment on any specific parity clause for numerous legal reasons, all the Sony and Capcom agreement really says is that if Capcom releases the game anywhere else in the next seven years, the PlayStation version has to be just as good. So Capcom can’t make a new version exclusively for Xbox that has a bunch of features the PlayStation version doesn’t have, and it can’t make any DLC exclusive to any other platform. If Capcom magically concocts a version of the same game a few years down the road that performs better and wants to put it on Xbox, it has to put it on PlayStation also. That’s all that’s going on here.
Parity clauses can sound alarming when taken at face value, but as with any other legal agreement, it’s critical to understand the actual context and effects before making a snap judgment about what it means. In reality, parity clauses are a normal aspect of the games industry, but the systems around them are instrumental in making sure we’re all playing the same games regardless of what console we own. So the next time you buy a game on PS5 and it’s basically the same experience as your friends are having on Xbox Series systems, thank a parity clause.
[poilib element=”accentDivider”]
Rebekah Valentine is a news reporter for IGN. You can find her on Twitter @duckvalentine.
