Secret Squirrel

You Don’t Always Need An NDA

Many creative professionals, like myself, are familiar with the concept of a non-disclosure agreement (or NDA). It’s a legal document that employees and contractors sign with companies to protect their products while they are in development. You see them all the time, and I’ve certainly signed my fair share.

Recently, however, I’ve seen a few companies that are pushing against the need for NDAs on every project they do. The most visible is Evil Hat’s “Disclosure Pledge,” but I’ve seen other creative professionals (usually indies) argue that exposure is more important than protecting information. Which brings up the question “When do you need to ask people to sign an NDA?”

I’m not a lawyer, this is not legal advice, etc. etc., but I did listen to an IGDA webcast about intellectual property last week, which answered a few interesting points for me. In it, I learned that NDAs are primarily used for one area of IP rights: trade secrets. In the U.S., a trade secret is basically defined as any information which derives independent economic value from not being publicly known.

What does that mean? As an example, let’s say you’re working on a new paper and dice roleplaying game, and you have some new mechanics. If one of your freelancers took that information to another company, would you lose potential sales as a result? Conversely, if your freelancer took that information to the Internet, would you lose sales? Or would you gain sales from buzz and hype?

There isn’t any easy answer to this — each company and individual will draw that line a little differently. People who feel they have sincerely novel material should always consult a lawyer. But at a higher, strategic level, it is worth consideration. It’s possible that your project may be hindered, not protected, by heavy NDA use.

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