Let’s start by making it clear that I am not a lawyer and this article is not legal advice. It’s just a discussion. You should consult a legal professional if you have any questions about specific agreements and contracts.
The entertainment industry runs on creative ideas. This includes not only comic books, of course, but also television, movies, publishing, and video gaming.
Most ideas are just fresh takes on old concepts, but every so often you’ll have one that seems so good and so original that you’re afraid someone might take it and release it before you have a chance to do it yourself.
You want to keep the idea a secret.
In practical terms, though, it might be impossible to keep your idea a secret from absolutely everyone. Unless you plan on writing, drawing, coloring, lettering and performing all the other tasks associated with producing a comic all by yourself, you’ll have to let some people in on your concept before your comic book is released.
But how do you keep them from blabbing to the world? One answer is to have anyone with whom you discuss your idea sign a confidentiality agreement.
The non-disclosure agreement (NDA)
A non-disclosure agreement (NDA), or confidentiality agreement, is a legal agreement that outlines confidential information that may be shared only with a limited number of parties. This post at a Government of Canada site has some tips about what a well written NDA should include. Here’s a deeper look at the key elements of an NDA from a general business standpoint.
There are plenty of examples, and even templates, for such agreements online. A search on “confidentiality agreement” or “non-disclosure agreement” turns up plenty of options.
When is a confidentiality agreement necessary?
That’s your call to make, of course. However, before you incur the legal expense to have a document drafted, or risk losing the best creative talent available to your project because they don’t want to sign a non-disclosure agreement, try to give your idea an objective assessment.
Since the early decades of last century, hundreds of comics have been published each month. Countless movies and short films have been released during the same period. Fictional literature dates back to the earliest days of recorded time.
That means it is extremely difficult to breach new ground and come up with a truly original idea.
With that in mind, do your research and determine if your idea will really be breaking into fresh territory and requires the effort of a non-disclosure agreement.
Along with the potential cost of drafting and defending such an agreement, you may find that some artists and writers have no interest in putting themselves at a legal risk for a new project and will balk at signing. This could cost you a creative collaborator that could have been crucial to the ultimate success of the comic.
If, after consideration, you feel that the risk of revealing your idea outweighs these negative aspects of creating a non-disclosure agreement, then it’s worth it to have one.
When constructing or signing such an agreement (or any legal document) you should make sure you read and understand the document. The safest way to protect yourself, of course, is to consult a lawyer.
Carefully consider the wording of the document, and reword or eliminate clauses that may be subject to loopholes.
Example— “Basic information regarding the project may be discussed publicly or privately, as long as it does not give away any twists that the series may have, or potentially provide any competition, or potential competition, with ideas or material that may be used to compete with this project.”
This clause is intended to enable the signee the ability to speak about the project for promotional purposes prior to publication.
But what does the word ‘basic’ mean? It might mean different things to different readers. It’s a loose term that weakens the clause.
What happens if the very premise or twist that the author wishes to conceal is ‘basic’ to the book or series? To avoid misunderstandings, if you want something specific kept confidential, you have to define it clearly in the document.
Another clause that is often included in these agreements is intended to stem criticism of the project or those involved in the production.
Example— “Any public criticism of the project, or others involved in it, must not happen until one (1) year after initial publication.”
Just look at the 2015 release of ‘The Fantastic Four’. Negative comments from the director just before the movie’s theatrical debut, coupled with weak pre-release reviews, crippled the box office for the film and added to the major losses the movie incurred.
As with other legal documents, the effectiveness of a non-disclosure agreement is only as strong as the intent to pursue legal action should the agreement be broken.
Even if you choose to pursue legal action, you might not receive any more than the legal costs you’d incur to file the lawsuit.
How would a court place a number on your losses from a violation of an agreement?
Dollar values for settlements are normally based on existing valuations. If you can show a history of successful publications, it’s probable that that’s the reference point that would be used to establish a monetary value for your losses. If you had no prior successful publications, they would likely use data from the average independent comic book publications. Unfortunately, those numbers are very low, so your claim might not amount to much.
Large companies have deep pockets and it’s easier for them to enforce contract violations. As an independent publisher, it’s less likely that you will be able to afford the costs of enforcement on your (presumably) smaller budget.
In addition, larger companies normally have a history of successful publications, and it’s easier for them to show that they’ve lost money as a result of someone violating a confidentiality agreement.
If an agreement has no teeth, is it worth it to have one?
A confidentiality agreement is not a failsafe way to ensure you aren’t ripped off.
However, while enforcement is not always practical, the agreement is still important.
It indicates intent, and it lays out in clear terms the expectations of everyone involved. No one who has signed the agreement can pretend not to be aware that certain information was to be kept confidential.
It tells your collaborators what is acceptable and what is not.
How do you protect your comic book ideas and avoid getting ripped off ?
- Work with people you trust, or at least those who have shown themselves to be trustworthy when they’ve worked with others. If you don’t know anyone who has worked with your potential collaborator, ask for references and check them.
- To ensure your contract is as strong as possible, consult a lawyer.
- Know from the start how likely you are to actually attempt to enforce the contract and what steps you will take, from simply talking to your collaborators and pointing out the clause in the contract, to having a lawyer contact an offender, all the way up to taking it to court.
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