Before You Sign | Non-Disclosure Agreements

19 May 2020 Before

When you submit your work for consideration by an agent, publisher or film producer you’ll naturally want to ensure that they will protect it from unauthorised sharing or development. Equally, publishers and self-published authors want to protect their interests in their dealings with the third-party services engaged in bringing a work to market.

You may even have considered asking a third party to sign a so-called non-disclosure agreement (NDA) and wondering if it might be appropriate to your circumstances.

The purpose of an NDA is to bind a party or parties (they can work both ways) under contract to a duty of confidentiality in relation to the receiving and handling of material shared with them. Any breach of that duty will amount to a breach of contract. This can lead to injunctions or a claim for money sought from the party at fault to compensate for the consequences of the failure, which may be significant.

A practical option?

In practice, few publishers or producers will agree to sign such an agreement presented by an author, particularly a debut author. They are likely to conclude that the legal risks associated with being found in breach are disproportionately high compared with the associated benefit of simply being able to review your submission.

However, an NDA acts only as a high water mark for creators wishing to bind third parties to a duty of confidence. In most circumstances it is simply not necessary. This was demonstrated in 1982 in a landmark ruling known as the Rock Follies case.

The claimants had verbally pitched an idea for a TV series to Thames TV. After initially expressing interest, Thames TV decided to proceed with their own TV series and to cast different actresses for the roles. The show pitched as Rock Bottom aired for two successful seasons in the 1970s, repackaged as Rock Follies.

When the group sued Thames TV, the scriptwriter and producer for breach of confidence, the court ruled that a valuable idea capable of realisation and imparted in circumstances where it is intended to be kept confidential between parties, will attract confidentiality even if not expressly agreed in writing at the time of disclosure. The action was successful.

Protecting your idea

Circumstances vary and there is no single approach to establish a clear duty of confidentiality. The more practical steps you take along the way to assert that your idea is to be kept confidential, the easier it will be later if you need to argue that you were owed a duty of confidentiality.

For example, if submitting a script or piece of work for consideration, it is always sensible to label it Confidential. For a more belt and braces approach, add a Confidential watermark throughout your script and include some more comprehensive and formal wording in your covering letter. The following wording will be perfectly clear in a wide range of circumstances:

‘I am submitting this work to you in confidence. The work is confidential and you may not use any of the information or ideas contained within it without first agreeing terms with me and you may not communicate any part of it or pass it on to anyone else except authorised persons within your company for the strict purpose of consideration for publication and on the same confidential terms.’

The APC Code

When it comes to submitting your work for film, television and radio, there are extra levels of protection offered by a Code of Practice from the Alliance for the Protection of Copyright (APC), of which the SoA is a member.

The APC Code, supported by a host of industry organisations including BBC, Channel 4, Channel 5 and others, is designed to encourage the free flow of ideas and proposals within the film and broadcasting sectors whilst offering much-needed confidence for those submitting proposals – from the professional producer sharing material with a commissioning broadcaster down to an unpublished writer responding to a call for submissions.

The principles of the Code are good practice even outside film and TV, with expectations of clarity and transparency on the submitting writer’s part, and expectations of confidentiality and good practice on the part of the company receiving your submission. You can download the full code from the Guides and Articles page of the Society of Authors website.

When an NDA is needed

If you are exploring opportunities to self-publish your work you may have considered using an NDA, perhaps using one of the boilerplate templates available from the Intellectual Property Office (IPO), to bind any third parties you involve as part of the publication process. You’ll be looking to benefit not only from the strongest confidentiality measures, but you’ll also want to ensure that intellectual property is correctly transferred and to secure a promise to return all materials at the end of the project and delete any copies.

With roles reversed, you might find yourself being presented with an NDA by a producer or publisher, particularly where, for example, you are being commissioned to write to a particular brief and there is a vested commercial interest in keeping the details of that brief confidential. Again, the IPO offers a range of resources and guidance on this. Be aware that, whatever an agreement says, you are always entitled to share it with a professional adviser, including the contracts team here at the SoA.

This is, of course, only a snapshot of the legal and commercial issues surrounding confidentiality and NDAs. If you have further questions about any of the points raised here, or you have a confidentiality agreement you would like us to review, please get in touch. We cannot offer legal advice or drafting services, but we can signpost resources to help you protect your work.

© 2020 Theo Jones

Theo Jones is a Contracts Advisor at the Society of Authors, advising members on publishing and other contracts and issues, and is co-secretary of the SoA’s professional Scriptwriters Group.