Phillip Woytowitz was a software engineer on the hardware infrastructure team at the graphic cards company NVIDIA, a job with many hats that, depending on the day, could involve debugging graphics features to testing games. One day, he got the itch to make a video game. The problem for Woytowitz, however, was one facing a lot of workers at gaming or tech companies who want to make something separate from the company they work for: they’re not allowed to.
Noncompete contracts, currently illegal in only a handful of states like California and North Dakota but are in the midst of being challenged nationally by the FTC, are designed to handcuff employees from working for competitors and sharing trade secrets. But in games, this concept, frequently dubbed as a “conflict of interest,” can apply more broadly, and deter creating personal works. In other situations, the restrictions provide the company you’re working for total ownership of the work itself. In both cases, lawyers Waypoint spoke to suggested companies are unlikely to pursue legal action, but the threat is a successful deterrent. It creates fear.
Because Woytowitz was a complete nobody in the game development scene, he did what several developers I spoke to for this story did, and made—and later released—the game in secret. It was only after the gaming publication Rock Paper Shotgun wrote an article about the game, a mix of gardening and golf called The Growth Project, that Woytowitz approached NVIDIA.
Woytowitz described to Waypoint a series of emails between himself and the human relations and legal teams at NVIDIA about trying to release the game while he worked for NVIDIA, and all arrived at the same answer: “no.” One person at NVIDIA, seeking compromise, raised the idea of releasing the game through NVIDIA’s own platforms. The answer was still “no.”
NVIDIA declined to comment.
“Realistically there's a good chance I could've stayed there,” said Woytowitz in an interview with Waypoint, “released games under my public name, and never actually suffer a lawsuit because it'd be bad PR for the company, but when legal says ‘no’ it's very off putting.”
Instead, Woytowitz quit.
A proposed change to largely eliminate noncompetes by FTC chair Lina Kahn, focused on companies limiting workers from working elsewhere in the same market or within certain geographic regions, wouldn’t solve Woytowitz’s problem, though that’s an issue in games, too.
One developer, who asked for anonymity to avoid repercussions as their current job, worked for Chicago-based High Voltage Software (The Conduit) in the 90s, and described a policy where employees couldn’t work anywhere else within 50 miles, aka any job within the region.
They ignored that policy. Ignoring these and other policies, despite the perceived legal repercussions, often happens because such threats are largely seen as just that: threats.
“Can’t say that I’ve ever seen them enforced,” said Capybara Games studio director Joel Burgess, who previously worked at both Ubisoft and Bethesda Softworks, “but I do think they have a chilling effect.”
“Retain people with your superior culture, amazing projects to work on, and brilliant people to work with,” said Scott Hartsman, a developer with a specialty for MMOs who’s previously worked as a technical director and producer on EverQuest. “Not with a hostage situation.”
Hartsman told Waypoint about a situation early in their career, right out of high school, where he’d worked with a developer for a handful of years before feeling burnout. This was a moment in time when he was a “broke college student” where every dollar earned “is going straight to tuition, rent, or ramen. “After leaving, he joined up with a friend’s company, and it wasn’t more than a week before a cease and desist showed up from his previous employer.
“[The letter was] informing me that I was in direct violation of my non-compete with my former RPG company,” said Hartsman, “by helping my friend with his poker and chess communities. And further, that my profoundly broke self (and my friend, and his company) would be sued in whichever jurisdiction it was (that was of course in a different state) if I didn't stop immediately. He's not rich. I'm far from rich. A fight is out of the question. I did ask the company if I could be released from it, or if they could understand how it didn't apply. Their response was: ‘No, if we can't have you, then neither can anyone else. Remember, you agreed to it.’”
An engineer at Sony, who asked to remain anonymous to protect their job security, told Waypoint they were offered an opportunity to work on an unannounced indie game, the kind of project that could bolster a career, and didn’t even bother asking Sony if they could take on the side work, because it was made abundantly clear during the hiring process that it wouldn’t be approved.
Sony did not respond to a request for comment.
“I've seen a company take it so literally as ‘you can't help your friend with their game by playtesting it,’ which is rough,” said one video game producer, who asked to remain anonymous to avoid impacting their current employment. “There are also non-competes that are draconian and say you can't have another job, and wouldn't you know it, those companies are also the ones that tend to pay low enough that someone might need to.”
The same producer said the policy of approving jobs for ex-employees via noncompetes is still alive and well in the video game industry, noting that it “wildly dampens career mobility.”
In 2011, Boston.com reported about a quality assurance tester, Logan Benson, at Rock Band creator Harmonix who was later laid off. Benson had signed a noncompete agreement while working at Harmonix that stipulated they could not work for a competitor for at least a year, despite Harmonix terminating their employment. When Benson tried lining up a new job at a developer in the area who also worked on music-related games, Harmonix enforced the noncompete. Benson was forced to turn down the job, and ultimately left games entirely.
[My] noncompete did absolutely prevent me from getting extra work…if I followed the rules.”
Benson, now a software engineer in healthcare, did not respond to a request for comment.
“Undoubtedly there are many companies that require new employees to sign a non-compete agreement as part of their onboarding paperwork,” said David Hoppe, a lawyer at Gamma Law, “even though non-competes may be illegal in their state or even though the non-compete goes beyond what’s permitted. Some of those employers may not understand the law, or they may want to impose some kind of fear in the employee.”
An engineer who lost their job during Microsoft’s recent wave of 10,000 layoffs told Waypoint they hired a lawyer to carefully look through their severance agreement to ensure a noncompete didn’t exist. Thankfully, it did not, and they’ve been able to take interviews. But they had to check.
Alongside rising unionization in the video game industry, the FTC’s decision opens the door to conversations about the control companies have, and if the status quo should change.
“My attitude is that a company should allow the employee to keep ownership of anything they make on their own time, on their own equipment,” said lawyer Zachary Strebeck, who specializes in video games. “Side projects should be encouraged. But lots of companies don't think this way.”
Strebeck called this practice “extremely common” but argued companies can put proper guardrails within contracts in other ways. That’s what non-disclosure agreements are for.
“There's also the possibility,” said Strebeck, “that a side project blows up and becomes super popular, and the company is going to want a piece of that (or all of it) if you worked on that on company time.”
A popular version of that scenario is, for example, internal game jams, which have become commonplace in the past decade. Developers I spoke to said people understood making a side project on, say, a Ubisoft-sponsored game jam probably means Ubisoft owns the side project, but usually, this isn't what developers are taking issue with. It’s their own time.
One option for developers is called a “carve out,” where the worker specifically declares the project they are, or intend to, work on in the future. Essentially, you put the idea into writing, so the company has a document proving you had the idea while not on the company dime.
Two developers I spoke to appreciated this opportunity, and pointed out how they were able to push through personal creative endeavors—in these cases, board game ideas—at work.
“You described the project in pretty broad terms and a group at HQ reviewed it,” said Burgess, who got one such approval through while working at Ubisoft. “For me it wasn’t hard—something like ‘a tabletop card game where players take turns dating characters to learn about their preferences’ so pretty clear it wasn’t a huge conflict with my work.”
In Ubisoft’s case, at least, side projects were otherwise ignored until they generated a certain percentage of your overall income, perhaps removing it from side project status.
Ubisoft did not respond to a request for comment.
Others didn’t like the idea of having to hand over, in writing, their own ideas. Even though the company would claim it was to legally protect both sides, it felt tilted in a singular direction.
“I’m a distrustful human,” said a high-profile developer on a hugely popular shooter franchise, who asked for anonymity because their employment includes scary-sounding language about ideas they might have outside of work. This same developer writes ideas down in notebooks, rather than a computer—even a personal one. They’re too paranoid.
“This has a pretty demotivating effect on me because it makes me feel like I just need to stymie my own creativity for the duration of my contract,” said the developer. “It’s not that I think anything is actionable, it’s that it adds a kind of fear plus sadness over the top of the work for me. It’s not even that I think my ideas are good, a lot of them aren’t. It’s the notion that I don’t own my ideas that is the sad part.”
They have, so far, chosen to not act on any of their ideas. There’s only notebooks.
This, again, is where secrecy comes back. Developers start doing things under the table.
“One studio was OK with me doing side projects as long as it didn’t interfere with my work,” said one developer, who asked for anonymity to avoid impacting their future work. “The other, a [big budget studio], thought about letting me do it, but said no. I did it anyway.”
The solution to the problem was asking the side gig to credit them with a fake name, and later, when the coast was clear and no active legal threat, to change it to their real name.
One developer, who requested anonymity because even talking about noncompetes can get you in trouble at current and future jobs, described a situation where a noncompete caused them to be paid with “a very powerful weed brownie.” The developer had taken a new job, only to be contacted by their old employer, who desperately needed help with an issue they were familiar with. The problem, of course, is their new job had a very explicit noncompete.
“I get an email asking if I will pretty please show up on the weekend to fix the thing just in time for a deadline,” said the developer. “I am very bad at Saying No To People but also very bad at Breaking The Rules.”
“This has a pretty demotivating effect on me because it makes me feel like I just need to stymie my own creativity for the duration of my contract. It’s not that I think anything is actionable, it’s that it adds a kind of fear plus sadness over the top of the work for me.”
Ultimately, they agreed, and when the job was done, “in a fascinating combination of guilt, thankfulness, and irresponsibility,” the developer went home with an illegal weed brownie.
Another developer, who like others asked to remain anonymous to avoid putting their job in jeopardy, was working at a high-profile video game company where an arm of the company also produced films. Because of that Hollywood connection, the developer was not allowed to touch movies, either, even though elements of their job had transferable skills between the two worlds. Despite nothing about their day-to-day job involving film, because of the corporate connections, they were told to turn down any opportunities to work on movies.
“Turns out I just did it anyway without telling anybody,” the developer told me. “[My] noncompete did absolutely prevent me from getting extra work…if I followed the rules.”
The vast majority of the developers I spoke to wished for more freedom from their employer, a sentiment that’s only grown over the course of the COVID-19 pandemic, where rapid expansion of working from home and embracing other forms of non-traditional workplaces have blown up previously held beliefs about how and what is required to run a company.
But at least in one case, a developer was sympathetic to the argument.
“I've had the unfortunate experience of working with many who moonlight at a previous company and what happens is that when they are next to me, they are too tired to pull their weight,” said an animator on a highly anticipated upcoming open world game, who asked to remain anonymous because they were not authorized to speak to with the press. “Not a general rule, of course. But I've seen it enough where I understand the company's point of view of not wanting their staff to be tired before they even start their day. Making games is so team dependent that if you get too many of those, stuff just doesn't get done.”
And yet, the same developer saw corporate ownership of side projects as hard to enforce and easily gotten around, making the practice untenable. Ease of access to tools means many developers are going to get curious, and in their eyes, the solution isn’t ridiculous legal policies but making the on-the-site job a better place to work and paying employees more.
“There's fierce competition for talent since the pandemic and work from home,” the developer said, “and workers are just not putting up with any crap anymore. It's too easy to find a new job if you don't like where you are and if you are any good at what you do.”
It is possible to have noncompete clauses and creative restrictions removed from employee contracts, but it requires working with a lawyer and demanding it. It means reading and understanding the fine print, and realizing it’s possible to negotiate beyond what you’re paid. The reason policies like this still exist is because their desire to stifle and control is effective.
Almost every developer interviewed for this piece wants the industry to walk away from these practices. That seems unlikely to happen voluntarily, but between pressure from an aggressive FTC, increased competition for jobs, and the prospect of unionization, perhaps developers will earn such freedoms in the years ahead. But it won’t come without a fight.
Follow Patrick on Twitter. His email is patrick.klepek@vice.com, and available privately on Signal (224-707-1561).