Nondisclosure Agreements

Q. I have written a novel with a unique concept, and intend querying agents and publishers. I want to protect myself from the theft of my idea and my novel’s title.  I’ve heard this can be accomplished by asking the agent or publisher for an “NDA.”  What is that?

A.  Many new writers are under the impression that the “theft” of their ideas is a legitimate concern.  Time for some myth busting:

Ideas and “concepts” can neither be owned or “stolen.”  Ideas are not property – they cannot be copyrighted, trademarked, or patented.  Only the “original expression” of ideas – in the form of prose, poetry, or art – can be owned and subject to copyright.

Book and movie titles also cannot be owned or stolen.  Most writers are surprised to hear that titles are not protected by U.S. copyright law because they are considered too short to contain sufficient original expression.  (It is possible, however, for a novel’s title to become so famous that it reaches the status of a trademark;  if so, the title could not be used by other novelists.)

It is customary in the film and television industry for producers and agents to require a written waiver from writers who submit their work without representation.  This waiver gives up the writer’s rights to sue for copyright infringement (or for anything else) if the writer subsequently sees a film or television series similar to the writer’s script or film treatment.  Some literary agents and publishers also request these waivers from writers, but they are a distinct minority; it is the film and television industry, not the literary world, that is super-cautious because of the nature of the business.

An “NDA” is a “non-disclosure agreement.”  This is a written contract between a prospective purchaser of the writer’s work (producer, agent, publisher, etc.)  whereby that party agrees it will not use the writer’s concept or ideas without the writer’s permission; to do so would be a breach of contract and the writer could sue for damages.  So – is this the answer to protecting your ideas?  No — because it is highly unlikely that a legitimate agent or publisher would agree to sign an NDA when presented by an unrepresented, unpublished, or non-best-selling author.  It would, however, mark the writer as an amateur, and perhaps generate a few laughs at such naiveté.

In over 20 years of experience in the publishing world, I know of no instance where a legitimate agent or editor “stole” the ideas of an author.  Instead of worrying about idea theft, writers should concentrate on what really matters.  Thousands of writers annually sign unfavorable contracts granting exclusive rights to exploit their work in multiple markets, in any language, anywhere in the world, in any media – print, digital, audio — without suitable reversion rights, or adequate termination provisions, and without understanding the significance of royalty and indemnification provisions.  Indeed, I have encountered clients who signed their publishing contract without reading it, to their everlasting regret.

So, instead of worrying about the extremely unlikely event that someone will steal your ideas, concentrate on actually creating and polishing your work – and then do your homework on publishing agreements.  Any writer who can handle syntax, usage, characterization, and plot is capable of understanding the key provisions of a publishing agreement.  There are hundreds of good resources available for free on the web; use them.

 © 2017 Daniel Steven