by Susan Spann
A “nondisclosure” agreement (or “NDA”) is a contract or contract clause in which one or both of the parties promise not to discuss certain subjects, facts, or contract terms.
In business, NDAs are common, but they generally only apply to legally protectable “confidential information” belonging to the parties who sign the contract. In publishing, NDA clauses are problematic for many reasons, and sometimes publishers use these clauses as “muzzles” to restrict an author’s ability to talk about problems with the publishing house.
Today, I want to shed some light on these clauses, and why they're often bad news for the author.
While some forms of confidentiality are appropriate in carefully-tailored circumstances—for example, when limited to discussion of confidential subjects like advance amounts or contract negotiations—authors should never sign a contract with a nondisclosure or confidentiality clause without first having the contract reviewed (and negotiated or removed, if necessary) by an agent or publishing lawyer.
NONDISCLOSURE IS DIFFERENT THAN “CONFIDENTIALITY”
"Confidentiality" clauses prevent the contracting parties from using or disclosing the other party's legally protectable confidential information without permission.
This kind of clause is more common in business contracts than in publishing, and in business it normally protects valuable “trade secrets” like business methods and customer lists. In publishing, the author's manuscript is supposed to become public (when published) and the publisher doesn't share trade secrets and other confidential information with its authors. Thus, there's really no need for confidentiality in a publishing contract.
However, sometimes publishers’ contracts do include a confidentiality clause. If you see one, it should be mutual (binding both author and publisher) and should restrict discussion and use of legally protectable trade secrets and proprietary information only.
Alternatively, the clause should apply only to the actual terms of the contract, and possibly to the contract negotiations. (Some publishers want to avoid their authors sharing information about the advance amount or concessions made in the contract. This isn’t necessarily a deal-breaker, but it’s a dangerous clause and must be narrowly-tailored.)
Never sign a contract containing a confidentiality clause without an attorney or an agent reviewing the contract on your behalf and either negotiating it out or ensuring the clause is not a trap intended to prevent you from speaking honestly about your experience with the publishing house.
NONDISCLOSURE CLAUSES ARE DANGEROUS FOR AUTHORS
Unlike confidentiality clauses, "nondisclosure" clauses prohibit one or both parties from any public discussion of either: (a) the terms of the contract, or (b) the parties’ experiences and relationship with one another.
General "nondisclosure" provisions do not belong in a publishing contract.
Good publishers don't want to stifle the author's ability to talk about the publisher and the publishing process. Obviously, publishers don’t want their authors slamming them in public, and authors should behave professionally regardless of what the contract requires. However, it's dangerous for authors, and for publishing, when publishers to try to stifle an author's freedom of speech through nondisclosure clauses.
Some publishers try to use contractual nondisclosure clauses as a “muzzle” to stop an author from speaking out in ways or on topics the publisher wants to prevent. For example, a publisher might threaten legal action to prevent an author from telling others (including new authors considering an offer from the publishing house) details about the way the publisher does business.
Clauses that allow a publishing house to threaten an author into silence are dangerous, and authors should never agree to let the publisher “muzzle” their ability to speak honestly in public about their experiences.
If you're offered a contract containing a nondisclosure provision, ask the publisher to remove it. If the publisher refuses, seriously consider walking away from the deal. At a minimum, refuse to sign until you’ve arranged for an agent or a publishing lawyer to review the contract and ensure the clause is not a “muzzle” designed to prevent you from exercising your right to speak.
NONDISCLOSURE CLAUSES ARE NOT INDUSTRY-STANDARD
Most publishing houses do not attempt to muzzle their authors or stop them from talking about the publishing house in public. Some contracts do contain “non-defamation” clauses, which require the author to behave in a professional manner. Again, these can be dangerous, depending on who gets to determine what is and is not “professional.”
When evaluating your publishing contract, insist on industry-standard contract terms that don't prevent you from speaking honestly about your experiences. Have your contract reviewed by an agent or publishing lawyer, and remember: having no deal at all is better than signing a deal you later regret.
Keep your business wits about you and insist on a contract that respects your legal rights as well as the publisher's interests.
Have you ever seen a nondisclosure or confidentiality provision in a publishing contract? How do you feel about these contract terms?
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About Susan
Susan Spann writes the Hiro Hattori Novels, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. The fourth book in the series, THE NINJA’S DAUGHTER, will release from Seventh Street Books in August 2016. Susan is the Rocky Mountain Fiction Writers’ 2015 Writer of the Year, and a transactional attorney whose practice focuses on publishing and business law. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. Find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), and on Facebook (SusanSpannAuthor).
