Can Your Million-Dollar Idea be Protected?

May 9, 2014
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By Sean Loyless on Flickr

Here’s a scary thought–ideas are not protected by copyright law, no matter how unique and valuable.  If you give your elevator pitch in an elevator, anyone who overhears you may snitch it.

Copyright law applies only when a work is fixed into tangible form, such as a notepad or computer file. Even then, copyright law will not protect a core idea.  But contract law might.

Some people will advise you to have agents, editors and beta readers sign a Non-Disclosure Agreement, commonly called an NDA, before you pitch your idea, engage the editor, or email the manuscript. From a legal standpoint, asking for an NDA makes sense. From a business perspective, you may be seen as a novice.

The publishing world, like most of the business world, operates on trust and reputation. An agent or editor is unlikely to risk his or her reputation and career by stealing someone’s work. Many will refuse to sign an NDA. I doubt they are planning on stealing your idea, but they may have already seen something similar and don’t want to be accused of breaching the NDA.  In fact, they may even send you an agreement looking something like this.  Inkwell Management Submission Terms.

However, for beta readers, I would suggest using an NDA, unless you know the reader well. I would also ask cover designers for an NDA. I had the unpleasant experience of seeing my proposed cover designs, with my book title and name, blasted all over the internet by a designer without notice or permission. And this was months before my book was launched. I terminated that relationship.

If you would sleep better at night with an NDA in effect, here’s a sample for your use. Let me know if you find it helpful.

NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (“Agreement”), effective as [INSERT DATE] (“Effective Date”), is made by and between [INSERT YOUR NAME] (“Creator”) and [INSERT NAME OF OTHER PARTY] (“Contractor”). Each of Creator and Contractor may be referred to herein as a “Party,” and they may be referred to collectively herein as the “Parties.”

RECITALS

A.    [DESCRIBE SITUATION SUCH AS Creator wishes to engage Contractor to provide editorial assistance in connection with the following project: DESCRIBE PROJECT] (“Project”).

B.     Creator, as a condition to its willingness to enter into discussions and negotiations regarding the Project, requires Contractor to maintain as confidential the existence and nature of the Project (“Confidential Information”).

 AGREEMENT

THEREFORE, in consideration of the foregoing recitals and the conditions and the covenants hereinafter contained, and for other consideration, the receipt and sufficiency of which are hereby acknowledged, Contractor agrees as follows:

  1.  Contractor hereby agrees (a) to hold all Confidential Information in confidence indefinitely unless otherwise agreed in writing; and (b) to exercise the same degree of care with respect to the use and disclosure of the Confidential Information as it uses to restrict disclosure and use of its own information of like importance and in no event less than due care.
  2. The obligations imposed in this Agreement shall not apply to any information that (a) is already in the possession of Contractor; (b) becomes publicly available through no fault of Contractor; (c) is obtained by Contractor from a third person who is under no obligation of confidence ; (d) is disclosed without restriction; or (e) must be disclosed by law or court order. This confidentiality provision shall remain in effect for a period of three years.
  3.  Contractor agrees that a breach of its obligations herein will cause immediate and irreparable damage to Creator that could not be adequately compensated for in money damages, and agrees, without prejudice to the rights and remedies otherwise available, that Creator shall be entitled to equitable relief (without having to prove irreparable harm) by way of injunction or otherwise.
  4. In the event any action or proceeding at law or in equity among the Parties to enforce or interpret any provision of this Agreement, the unsuccessful Party shall pay to the prevailing Party all costs and expenses including, without limitation, reasonable attorneys’ and expenses, incurred by such prevailing Party in such action or proceeding and in any appeal in connection therewith.
  5. This Agreement may be signed in two or more counterparts. This Agreement shall be construed in accordance with the laws of the State of [CREATOR’S STATE]. This Agreement is the entire agreement among the Parties with respect to its subject matter. No provision of this Agreement shall be deemed waived, amended or modified by any Party, unless such waiver, amendment or modification is made in writing and signed by both Parties.

IN WITNESS WHEREOF, the Parties executed this Non-Disclosure Agreement as of the Effective Date.

And of course, sign it.

Image used under Creative Commons license.

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