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Artists and creators rely on their ideas and concepts to make a living. That's why, when collaborating with others, a non-disclosure agreement can be an essential protective measure in an creator's toolkit.

Why Creators and Artists Need a Non-Disclosure Agreement

Are you a creator? From storytellers to influencers, creative entrepreneurs come in all shapes and sizes. Regardless of your chosen medium, the one legal document you should always have in your back pocket is a non-disclosure agreement (NDA).

Read more: What is an Non-Disclosure Agreement (NDA) – Guide

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“Every person in business for themselves should be utilizing NDAs to protect their future earning capabilities.”

Getting an NDA signed before you share your inspiration and ideas with anyone, whether that be another creative you intend to collaborate with or a freelancer you hire, is the only foolproof way to ensure your ideas are protected.

After all, your ideas are your livelihood. Letting someone steal them or share them without your consent would be like a lawyer dolling out legal advice for free.

While an NDA might seem like a more common document for what we think of as traditional businesses that make, buy and sell physical products, such as a manufacturer, the truth is, every person in business for themselves should be utilizing NDAs to protect their future earning capabilities.

Below, I break down why every creative entrepreneur should have, at the minimum, a simple, yet protective, NDA ready and waiting.

Prevent Unwanted Disclosure

At its core, the most basic purpose of a non-disclosure agreement (NDA) is to prevent the recipient of information from sharing what they learn. This basic purpose is just as important of a function for a creative entrepreneur as it is, for example, a large soda company trying to protect its top-secret ingredients.

A well-drafted NDA form document will include key language that prohibits the recipient from sharing the information they received with anyone else (with very few exceptions).

Exceptions can include third-party agents like lawyers, accountants, but it can also include employees and business partners.

For creative entrepreneurs, unless it’s extremely obvious who might need to be brought into the loop, like a publisher or manager, it’s likely best to have an NDA that prohibits all third-party disclosure unless you consent to it. This approach grants you the most power and control.

By controlling exactly when and how your ideas may be shared, you remain the master of your universe.

Protect Your Intellectual Property

A non-disclosure agreement (NDA) allows you, from a legal standpoint, to plant your flag in the sand. In an intangible form, your ideas cannot be trademarked and they’re not yet protected by copyright. The only way to have some sort of ownership claim over your ideas then is to have them covered by an NDA.

How does one accomplish this?

In an NDA, you have the ability to spell out all the rules. This means you can specify in the agreement that any and all of the information you share remains your intellectual property.

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“A non-disclosure agreement allows you, from a legal standpoint, to plant your flag in the sand.”

The provision pertinent to “keeping what’s yours” will read something along the lines of:

“Party A retains all right, title and interest to . . .”

This phrase puts the other person on notice that just because you’re sharing your ideas with them doesn’t mean those ideas are up for grabs.

Also important, an NDA gives you the ability to specify what exactly should be deemed confidential. In other words, what information is legally yours and should not be shared freely with anyone else.

Defining conferential information can be simple with a general statement describing information that is not known to the public or common knowledge. But you can also define it further by listing types of information you may be sharing such as drawing, manuscripts, sketches, blueprints, etc.

It’s debated in the legal field whether the inclusion of such a list is truly necessary. When the NDA is between two individuals as opposed to two businesses, I think the inclusion of a list is instructive and helpful to both parties in setting expectations and understandings.

Do you need to register your trademark? Find out how Nocturnal Legal can assist you through this process.

Put Parameters in Place

A well-drafted non-disclosure agreement (NDA) will outline how the shared information should be used (i.e., the purpose for which it was shared).

In a traditional business setting, the purpose is often super generic like, “to enter into a more definitive business relationship”. Whether this level of generality is recommended is an entirely different topic, but similar to the traditional business, its always recommended to include a purpose.

By including a purpose, you create boundaries for how your information can be used. For example, if you’re thinking about co-authoring a book and you need to exchange plot ideas with another person, the purpose could be as simple as: “to co-author a romance novel”.

Keep in mind, the more specific your purpose, the better. If you include a very generic purpose you run the risk that the information could be used for projects that are tangential or somewhat unrelated.

What this means is that, if you do not put in place a strict purpose, there’s a lot of wiggle room on how the parties to the NDA could each use the information they receive.

Create a Legally Enforceable Right

If you start sharing your ideas without a formal non-disclosure agreement (NDA) in place, you might as well just start posting the outline of your new project on Facebook or Reddit.

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“You can’t let those warm fuzzies knock you off your game.”

While it might be exciting to begin working with another creative on a joint project, or a newly hired freelancer towards your long-term goal, you can’t let those warm fuzzies knock you off your game.

Your sole purpose in life as a creative entrepreneur should be dynamic — you want to share your gifts with the world, but when you’re ready.

It’s easy to let down your guard when you’re excited about new opportunities. This is especially true if you’re sharing ideas with

If, prior sharing your ideas, you enter into an NDA, you create a legally enforceable right. This legal right can be used in a court of law to stop the recipient from intentionally sharing your ideas with others or, worse yet, using your ideas for their own benefit.

Having an enforceable right also makes the sharing of ideas more formal. When a legal document is signed between two parties there is more than just an agreement to do right by one another. Oftentimes, the obligations feel more onerous and the parties are more likely to keep their word — especially if they know you could potentially seek monetary damages.

Summary

It might seem like overkill to use a non-disclosure agreement (NDA) when you’re a creative entrepreneur. It may be tough to even bring up the fact that you would like to use one if your industry subscribes to the idea that free thought is what makes art blossom.

However, having an NDA helps protect your ideas from being stolen or shared inappropriately. An NDA also allows you to seek help from a “high power”.

Have you ever lived in an apartment building where your neighbor decides to blast club music at 2am? In those situations, you could call your landlord or the property manager. This third-party mediator acted on your behalf to make the musically-inclined neighbor comply with property rules and local sound ordinances.

When you move into a home, besides calling the police, there’s not much you can do about a neighbor who continually plays loud, annoying music.

Unless you live in a strictly regulated home owner’s association, there’s likely few rules beyond a local sound ordinance that governs your neighbor’s music. And, worse yet, there’s no third-party mediator to force your neighbor to comply with a concrete set of rules.

Well, sharing your ideas without an NDA is a lot like moving into a house. You don’t have any of the rules and you won’t be able to seek help from the court system to enforce a right you never had.

Because of this, having a simple, short NDA that provides you with the basic and necessary protections is the best decision you can make as a creative entrepreneur.

Paloma Goggins - Business Lawyer in Phoenix, Arizona
Paloma Goggins is an experienced business attorney specializing in helping business owners buy or sell a business

I’m Paloma

I’m an experienced business attorney licensed to practice in Arizona and Wisconsin. My client-first philosophy allows us to collaborate, turning skills, passions, and knowledge into the ultimate form of change-making. Let’s innovate together.