Just Say No to an NDA

Here’s a little word problem for you (ahem):

Janie is a reasonably successful freelance editor of fiction and nonfiction. She works with both publishers and independent clients, and has done so for eleven years. By day Johnny is an accountant but in his spare time he has been carefully crafting a first novel; it will be, of course, an award-winning, international best seller. If only he can get it edited. Janie requires a sample of the work—a couple chapters and a synopsis—and a word count in order to quote a fee and make a decision about whether to take the project. Instead of emailing the chapters and the synopsis, however, Johnny sends Janie a nondisclosure agreement (NDA). What does Janie do?

Well, I’ll tell you what I do.*

First, I remind myself that this person has just revealed how little he knows about how the publishing industry works, so I should try to be gentle. I swallow what I want to say—feel free to use your imagination—and politely decline. I say, “The nature of my work is such that if I talked about my projects, I wouldn’t have any projects to talk about.”

Often, that is enough. Enough for the inexperienced author to step back, have a little think, and realize he has just insulted me by implying I am a thief. But if the author is not that insightful and insists, I again decline, and suggest he look elsewhere. After I press send, I have my own little think, and it goes something like this: Good riddance to bad rubbish.

Here’s the thing—you can’t copyright an idea. Brian Klems at Writer’s Digest has a good illustration of how the law works:

No one directly copied William Shakespeare’s Romeo and Juliet word-for-word and slapped their name on it, but they have used his idea—a love story about two young people from rival families—over and over again. West Side Story fits the bill (two lovers from rival gangs). Even Disney’s High School Musical has the same plot (rival high school cliques).

And since we all know there are only seven basic plots, you would have a heck of a time proving your idea was completely new.

You can’t copyright a title, either. (Once you’ve put your ideas down in the form of a manuscript, though, the law assumes your copyright. So what are you worried about, exactly?)

Furthermore, no agent or publisher is going to sign a nondisclosure agreement because, again, no one wants to start a potential relationship from a position of distrust. Talk to anyone reading manuscripts at a literary agency or publishing house and they’ll tell you that similar—sometimes identical—ideas come in all the time. (This is why agents often state what they are not looking for, in addition to what sort of manuscript they’d like to see. Because they are inundated with stories about, say, friendly vampires.)

How does that happen? Jane Friedman calls this “cultural zeitgeist.” It’s more prevalent than you think. There is a well-known experiment by British illusionist Derren Brown showing how environmental stimuli subconsciously affect our mental processes. Watch this little six-minute video and you will never again assume your idea about friendly vampires is unique in all the land. Pop culture is as pop culture does.

So why do perfectly nice people ask me to sign an NDA? I’ll tell you that too. It’s because of people writing articles like this: “Non-Disclosure [sic] Agreements—Three Great Reasons You Should Use One.” It sounds reasonable, maybe, if you don’t know anything about publishing or copyright law. This person is presenting herself as an expert, but within the first ten lines she reveals her inexpertise. Before you start believing everything you read on the interwebs, kids, check the author’s credentials. Or lack of them.

So put that nondisclosure (see? this is how it’s really spelled) agreement back in your pocket, please. I already spend more time than I’d like just trying to prize out—from folks who haven’t bothered to read my FAQs—what your word count is. I seriously do not have time for your silly NDA.

*I’ve discussed this before, albeit briefly, here and here.

 

Tweet: No one wants to start a potential relationship from a position of distrust.
Tweet: Put that NDA back in your pocket before you insult me.
Tweet: Just say no to an NDA. Really.

Disclosure of Material Connection: I have not received any compensation for writing this post. I have no material connection to the brands, products, or services that I have mentioned. I am disclosing this in accordance with the Federal Trade Commission’s 16 CFR, Part 255: “Guides Concerning the Use of Endorsements and Testimonials in Advertising.”

 

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5 Comments

  1. Ellen says:

    EXCELLENT advice!

  2. Natasha says:

    Hi Jamie,

    I have been following your blog for a while. I’m a fan ;). I’m also starting my own copyediting business and looking for advice wherever I can get it. Could you explain how an NDA affects you? I understand why he might think he needs one, but I’m unsure of how it impacts your business.

    Thanks for the advice,
    Natasha

    • Jamie Chavez says:

      Natasha, it doesn’t particularly, since I’m not planning to steal anyone’s ideas. It DOES give me a heads-up that this client is probably not someone I want to do business with, since he already assumes I’m dishonest and will no doubt be high maintenance in a myriad other ways. Furthermore, I’m cautious about signing legal documents and don’t want to spend time and money running multiple documents past an attorney. In the publishing world there are very, very few manuscripts that warrant a nondisclosure agreement. The ones that do are probably already on some editor’s desk in New York. :)

      And thanks for your kind words. :)

    • Jamie Chavez says:

      I should add that there are plenty of good reasons for contracts and other legal documents. In the publishing industry, an NDA isn’t one of them.

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