Writers often fear someone will steal their ideas. I understand. Writers work hard and feel the need to protect their creative sparks. Especially if the idea has commercial value.
Enter the non-disclosure agreement, or NDA. But are NDAs right for you?
What is a non-disclosure agreement?
An NDA is a formal contract that obligates the parties not to disclose any of the information that one party shares with the other party, except under specific circumstances. In many business and technology sectors, NDAs are prevalent. Often NDAs are used when a business discloses trade secrets like a manufacturing process or a high-tech gadget. For writers, NDAs almost always cover the disclosure of an idea or concept and the expression of it, like a book, story, or screenplay.
Why the need for NDAs to protect ideas?
Ideas are not copyright protectable subject matter, whereas the expression of those ideas is protected. See here for more information.
Should writers use an NDA?
It depends on the facts. Sometimes NDAs are necessary. Other times, NDAs can be improper. I know—such the lawyer answer.
In the publishing industry, NDAs are not in high demand. Rarely are NDAs used in disclosing information between an author and publisher, agent, publicists, or editor except under specific circumstances. If a writer asks a publisher or agent to sign an NDA, the writer will most likely be seen as unprofessional and a novice who is unaware of publishing industry standards. The last thing you want when you send a submission to an agent is to alert someone you’re unprofessional. It’s a sure-fire way to make sure your work isn’t read.
Why are NDAs rarely used in publishing?
Because a writer’s work is protected by copyright as soon as the idea is in a tangible form. See here for more information on what is and isn’t copyright-protectable.
When are NDAs appropriate for writers?
Under some circumstances, NDAs are appropriate, especially when confidentiality is critical. For example, freelance writers working with clients, collaborations between authors, or collaborations with ghostwriters. Maybe a client has sensitive material they are disclosing to the writer. Maybe the writer is pitching an idea to a prospective client. Maybe an author is screening a potential ghostwriter or another author before moving forward with a joint project. Under those circumstances, you can see why the NDA makes sense. Confidentiality is of the utmost importance.
If you find you need a non-disclosure agreement, here are a few guidelines to follow.
- keep the agreement simple;
- draft the NDA to specifically cover the transaction between the parties; and
- don’t include anything outside the scope of the transaction to be held confidential.
If you need to protect your ideas, a non-disclosure agreement is the best way to kept material confidential. Below are two examples of NDAs. Mold them to fit your particular circumstances.
Legal Disclaimer: The information in this article is for educational purposes only. It does not constitute legal advice or establish an attorney-client relationship. I am a writer, who is also a lawyer, helping other fellow writers learn about publishing law-related issues. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.
The non-disclosure agreement (hereinafter referred to as the NDA) is entered into as of ____________________ (add the date) between ____________________________ (hereinafter referred to the “Writer”) located at __________________________________ (add the address) and_______________________________ (hereinafter referred to the “Collaborator”) located at _____________________________________(add the address), (hereinafter collectively known as the “Parties”).
The Writer has valuable information (hereinafter referred to as “Ideas”) which the Writer deems confidential. The Collaborator is in the business of using such Ideas for projects. The Writer wishes to share these Ideas with the Collaborator. The Collaborator wants to review the Ideas for the purpose of working together on a project. The Collaborator acknowledges that the Ideas are disclosed by the Writer in trust and confidence, and shall be held in trust and confidence by the Collaborator. The Collaborator is willing to not disclose to third persons these Ideas as provided for in this NDA.
In consideration of the above and the provisions set forth below, and for valuable considerations, the Parties agree as follows:
- Disclosure of the Ideas—The Writer will disclose to Collaborator the Ideas regarding: _________________________(describe what ideas, information, or concepts will be disclosed).
- Purpose for disclosure—The Collaborator agrees that the disclosure of the Ideas is for purposes of evaluating the Ideas to determine any interest in the commercial use of the Ideas.
- Confidentiality requirements—The Collaborator agrees to hold and maintain the Ideas in the strictest confidence and not disclose the Ideas to any third-person or entity. The Collaborator agrees to not use or appropriate the Ideas for any reason other than the purpose above. Nothing in this NDA gives the Collaborator any rights in the Ideas. The Collaborator shall not, without the prior written approval of the Writer, use the Ideas for the Collaborator’s own benefit, or publish, copy, or otherwise disclose the Ideas to others, or permit the use by others for their benefit or to the detriment of the Writer. If the Collaborator discloses the Ideas without the Writer’s permission, the Collaborator shall be liable to the Writer for the following damages: ____________________ (add appropriate dollar amount).
- Negotiations and Agreement—If the Collaborator is interested in pursuing the project after reviewing the Ideas, the Parties agree to enter into good faith negotiations to arrive at a mutually satisfactory agreement. Until the satisfactory agreement is signed by the Parties, the NDA remains in force.
- Severability—If a court finds any provision of this NDA invalid or unenforceable, the remainder of this NDA shall be interpreted so as to best to effect the intent of the Parties.
- Miscellaneous—This NDA and the Parties’ obligations shall be binding on the representatives, assigns, and successors of such Parties. The Parties have signed this NDA through its authorized representatives.
IN WITNESS WHEREOF, the Parties have signed this NDA as of the date set forth above.