[quote name='Zoglog']Actually it is
Just because development is outsourced does not make a game not first party. As long as it is published by Microsoft Game Studios.
Other examples are the craptacular Metroid prime developed by Retro Studios or Blue Dragon Developed by Mistwalker, or 99 nights produced by Q and phantagram.... anyway you get the point. Just because the Company does not Own the Developer they still provide a great deal of support and it is still considered a first party game. hence no Gears of war on any other company's console EVER... unless MS stops making consoles.[/QUOTE]
Incorrect. Metroid Prime is based on an existing Nintendo franchise. Nintendo retains all rights. They can produce versions for any platofrm they like without consulting Retro. Simlarly, Donkey Kong games by Rare are based on existing Nintendo IP and Nintendo has retained the rights. A more complicated case is the original Star Fox. This started life as essentially Starglider III, a series Argonaut had produced for the Atari ST, Amiga, and PC that was published by Mirrorsoft. Nintendo decided they didn't want a major title premiering as an existing series on their platform (unless it was from an earlier Nintendo platform) and they wanted to bring in the cute factor as opposed to the more hard-edge SF setting of the Starglider titles. So Miyamoto was assigned to add a lot of creative input on the characters and other elements on top of the gameplay Argonaut already had in place. This level of original creative input from Nintendo made the game first party in the contractual negotiations. Argonaut was more concerned with the expected lucrative royalties on the FX chip used by the game. The economics for that chip didn't work out well, especially after the SNES-CD, that would have included the chip and made it accesible without added cost to third parties, was canceled.
But the story changes when the IP originates with the outside developer. Rare has retained the IP rights to Perfect Dark, Blast Corps, Jet Force Gemini, Banjo Kazooie, Conker, etc. and is free to produce new versions of those game for any platform and new entries to the respective franchises. Nintendo has no ongoing input on the issue unless a Nintendo platform like the GameBoy is involved. It was no problem for Rare to sign over all ownership of a game like Donkey Kong Country because it would be impossible to make further use of the IP independently of Nintendo.
Microsoft published GOW but the IP is entirely Epic's. In all likelihood the only continuing control Microsoft has over the franchise is right of first refusal for any sequels. That would suppose Microsoft had a suitable platform to invoke that right. If Epic decided a handheld spinoff of the game was the next project, Microsoft would be in no position to object that it would be going to a non-Microsoft handheld. Longterm, Microsoft cannot even be assured the game will not appear on the PS3. Epic is extremely unlikely to have sold off the exclusive rights permanently. At most their contract probably only locks the game to the Xbox 360 for two years, after which it hardly matters any more. (Nintendo used that same period of time to very effectively deny Sega and NEC access to third party titles in the US market.) Permanent exclusivity is very expensive because no sane company is going to let their creation go cheap. Sony would have little interest in having GOW on the PS3 when all of the consumer interest has shifted to GOW II.
Getting that lengthy period of exclusivity on contingent on Microsof tpicking up the tab for much of the development budget, manufacturing, and marketing of the game. Sony has gotten much shorter periods of exclusivity mainly by kicking in a lot of co-op advertising money. Thus you have GTA titles receiving imporved Xbox ports in less than a year of the PS2 release, while the game is still a very strong seller. It's long enough to make those who are impatient decide they had to have a PS2. Even if the game is a turkey, as with some later Tomb Raider titles for which Sony bought a six month exclusivity period, it's still worthwhile because anticipation brings in the rush of early sales before word gets out to just that platform.
Microsoft could decide to immediately get out of the game business tomorrow but a PS3 port of GOW would still be damaged goods to Sony since the title is so inextricably tied by marketing to the Xbox 360. Unless the game could dependably produce similar sales for Sony after the time needed to get the port done, it would be preferable for them to not have it rather than be perceived to be picking up another company's scraps.
The terms 'first party' and 'second party' exist for a reason. That reason being that just because a property is published and marketed by one company does grant that company outright ownership. Go to a used bookstore and look at varying editions of a novel that has remained in print for decades but not in the public domain. The author may change publishers several times and take his backlist with him. In fact, one of the ways a publisher can entice an author to join them is offer new printings of that back list if the current publisher has allowed it to remain out of print after the contractual period has pased.