(Editor's Note: The following article was the result of an e-mail query. As Mr. Orbanes has direct experience in such matters I forwarded the note to him and this was his response.)
Attempting to acquire the rights for an out of print game involves a straight forward process. Succeeding at it is another story.
The first step is to inquire at the most recent maker of the game. For example, if one wanted to acquire the rights for Boom Or Bust, a classic money game from the late '40s-early '50s, you'd contact the maker, Parker Brothers. Complications may immediately develop. For example, Parker Brothers no longer exists as an independent company—it is merely a brand owned by Hasbro. So you may need to find out if the maker still exists and, if not, who has taken it over. Many old game companies were swallowed up by the few survivors left today (example: Mattel owns International Games—makers of Uno and Skip-Bo—so inquiries about the old International Games products would need to be directed to Mattel).
Who to contact there is often unclear. But it is usually best to contact the Licensing Dept., making sure you ask for "out-licensing" versus "in-licensing" (the latter group is only responsible for making deals with Hollywood, etc., to turn movies into games, etc.). Inventor Relations in another group worth contacting if the out-licensing group is unresponsive.
If you're lucky, the licensing deptartment will be able to quickly ascertain if their firm has retained the rights for the game in question. If you're lucky, they haven't, but can provide you with the name of the creator, or agent, who currently holds those rights. Many game contracts require an annual royalty payment. If not met, the rights revert to the inventor/agent who sold the game to the maker. Some contracts are for a specific period of time and have expired. I use the term "lucky" here because at least in this case you'll be able to deal directly with the person most intimate with the game and probably the one most interested in seeing its return to the market.
You're usually unlucky if the firm has retained the rights. People there will need to decide if they have any further interest in the game which would preclude them from licensing it to you. This could take months. Further, they may have restrictions in their contract with the inventor that prevents them from so doing without the inventor's approval and significant money changing hands—even if they're so inclined.
If you can't find the maker or the inventor, another strategy is to do a trademark search (it costs $99 on the Internet via "Mr. Trademark"). This is wise in any event because you need to know if the game's title is clear or if someone else is now using it. By conducting a search, you will find if the mark is still valid and, if so, who owns it—that's the firm or person you need to contact.
A final strategy, if all else fails, is to actually republish the game. Doing so will usually flush out the rights owner who will contact you and make demands. You should be prepared for this and set aside at least 5% of all sales for royalty payments when this occurs. There is a risk here because the rights owner may have something else in mind and may seek an injunction. But the risk is worthwhile if you feel the rights owner has disappeared or you feel he or she would be delighted to have some income flow from a game without licensing interest elsewhere.
Note: there are a few books on the market that picture and name many games from the past 50 years. Through one of them it is usually possible to pinpoint the original or most recent maker—your first step in figuring out the identify of the successor in most cases.
If you finally reach the holder of the rights, you'll need to make a deal—the contents of which are another topic. You'll likely be asked to make an advance payment against future royalties, pay a royalty—typically 5% of actual net sales, issue quarterly reports, defend the game against infringers, meet annual minimum royalty payments, and contend with a 2-3 year period for the initial contract term.
- Philip E. Orbanes