Why Your Non-Disclosure Agreement Is Probably a Bad Idea

Photo by zimpenfish via Flickr

Photo by zimpenfish via Flickr

While working at F+W Media (from 1998–2010), on one or two rare occasions, I would receive a frustratingly vague query from an unagented author. Such authors would promise to send more information after I signed their non-disclosure agreement (NDA).

I never agreed.

First, I couldn’t enter F+W into that kind of agreement without permission from the executive team. (And they would have laughed me out of their offices.) But perhaps more importantly, NDAs have never been part of the traditional book publishing business. When literary agents submit work, they don’t ask editors or publishers to sign NDAs. When literary agents agree to represent their clients, no one signs NDAs. Etc.

So when you encounter the NDA as an editor, agent, or publisher, you know you’re dealing with someone who isn’t familiar with the standards of the industry. Of course, it’s true that once you put an idea out into the world, there is the possibility someone else will steal that idea and use it for themselves. Ideas can’t be protected under copyright.

But in publishing, do you know how hard it is to profit from an idea alone? Almost impossible. You have to be able to execute it well. And execution is everything.

When I recently heard Derek Sivers give a talk, he showed the following slide.

Derek Sivers on execution

Derek Sivers at World Domination Summit 2015

Sivers also dislikes NDAs. He’s in the startup and tech industry, where they’re far more prevalent. But even in that more profitable industry, execution (again) is everything.

No one can execute your idea like you can. With fiction, no one can put your voice, style, or spin on the characters and plot. With nonfiction, it will require the right personality, brand, or platform to pull the idea off in a way that’s meaningful or profitable. (Not to mention the right marketing, packaging and distribution.)

And no one can be you. If anyone could be you, you’ve got a problem.

These days, perhaps because I’m a full-time entrepreneur, authors ask me to sign NDAs more frequently. I always say no, partly because of everything I’ve just described. But NDAs also indicate an author with a scarcity mindset, someone who is probably too invested in a single book idea. They may think: This is the only valuable idea I will ever have, or the most valuable idea I will ever have. 

Anyone holding on that tightly to something can be a difficult person to work with. The level of sensitivity or emotional investment can be hard to navigate.

Furthermore, as a person working for herself—and without a legal team—I don’t want to expose myself to any potential legal quagmire, not unless it’s a very special scenario. Consider what this company says (I agree):

NDAs are serious legal documents. Our lawyer says it’s a bad idea to sign one before we know the party well and understand what we’re promising not to disclose. He’s particularly not fond of NDAs that are broad and general. We try to listen to him.

For more reading:

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Jane Friedman

Jane Friedman

Jane Friedman (@JaneFriedman) has 20 years of experience in the publishing industry, with expertise in digital media strategy for authors and publishers. She is the co-founder and editor of The Hot Sheet, the essential newsletter on the publishing industry for authors.

In addition to being a columnist for Publishers Weekly, Jane is a professor with The Great Courses, which released her 24-lecture series, How to Publish Your Book. She also has a book forthcoming from the University of Chicago Press, The Business of Being a Writer (March 2018).

Jane speaks regularly at conferences and industry events such as BookExpo America, Digital Book World, and the AWP Conference, and has served on panels with the National Endowment for the Arts and the Creative Work Fund. Find out more.

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12 Comments on "Why Your Non-Disclosure Agreement Is Probably a Bad Idea"

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Ernie Zelinski

I totally agree. This comes from one of my books, not yet published:

“Don’t worry about people stealing your great idea.
If your idea has the potential to change the world,
you will be lucky to get just one person to listen to it.
To have a person steal it, this would be a miracle.”
— from “Life’s Secret Handbook”

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[…] Asking an editor or agent to sign a non-disclosure agreement is not part of traditional publishing business practice—and it's usually a red flag.  […]

Melynda Nuss
This is fantastic. I’d like to add one thing that’s implicit in your post, but maybe not explicit. If you’re worried about someone stealing your actual words — not your idea, but the expression that makes it live — your work is protected by copyright. Your writing is protected by copyright the minute you write it on paper or save it on your hard drive. If an agent or publisher steals a writing sample or manuscript you’ve submitted, those actual words are protected without any need for a nondisclosure agreement. If you’re worried about this, the best way to protect… Read more »
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[…] NDA) como este para proteger nuestra idea original antes de su publicación. Ahora bien, en realidad casi nadie los firma en el sector editorial; entre otros razonables motivos, porque no se puede […]

Helen Sedwick

Jane, thank you for writing this. I totally agree. As an attorney, I am often asked about NDAs, and now I’ll send them to your post.
I try to explain to writers that agents and publishers are in the business of seeing new ideas and manuscripts. Their professional reputations are too important to tarnish by stealing someone’s work.

Dana Kaye

Really great post! NDAs are very common in the PR industry and while our author don’t ask us to sign them, many of the publishers or PR companies we’re contracted with do. Some are more straightforward, while others I’ve refused to sign because they could leave us liable for too many things.

Marcy McKay

Hi Jane. My husband is in the financial services industry and he’s fells the same way as you about NDA from folks who are SURE he should be selling their product. He says, “Thanks, but no thanks.”

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[…] Agent Janet Reid discusses several business situations to avoid, while Jane Friedman points out why using non-disclosure agreements is a bad idea. […]

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[…] between editor and author, and some editors have strong opinions about being asked to sign one. Writer’s Digest editor Jane Friedman gets a little incensed about them here. But in special circumstances, your lawyers or your agent or your publisher might feel more […]

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