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Should you ask potential clients to sign an NDA?

Illustration by

Jon McCormack

Words by

Tom May

August 16, 2021

You’re visiting a prospective new client, who wants to hear your ideas for a project, before they agree to commission you. So far, so good.

But then a nagging thought occurs to you.

What if they end up not commissioning you, and go with another freelancer - but then take your great ideas, and run with them anyway?

That’s exactly what happened to “Kate” [name changed], a commercial photographer and videographer who was asked to pitch for a job working on an action sports-themed campaign for a big advertiser.

 ‘They followed my concept to the letter’

“My would-be client was all smiles,” she recalls. “I spent around an hour presenting my ideas of how the different shots should be set up, what kind of gear the actors should wear, the lighting we should use, and so on. I never heard back from them. But about eight months later, I saw their campaign, and it seemed like they’d followed my suggestions to the letter.

“Okay, ‘great minds think alike’ and all that,” Kate continues. “But some of the smallest and most specific of details in this campaign seemed very, very similar to what I said in the pitch. I was fuming... but as a freelancer, you don’t want to get a reputation as a trouble-maker. Which is why I kept schtum, and why I’d prefer to remain anonymous for this article.” 

So how can you prevent the same thing happening to you? That’s where the Non-Disclosure Agreement (NDA) may come in. 

Get the client you’re pitching to to sign one, and in theory at least, your intellectual property will be protected. Sounds good, right?

Well, in theory, at least. In practice, things get a little more complicated. 


What an NDA can’t do 

Before we dive too deeply into NDAs, we should point out that they are not a magic bullet for protecting your intellectual property.

After all, if your potential client simply breaks the NDA, you don’t have an easy or obvious recourse. An NDA is a civil contract, so you’d need to take them to court to enforce it. If you lost, you’d have to pay their costs as well, which would bankrupt most freelancers. 

Yes, you could theoretically get a ‘no win, no fee’ lawyer. But your case would have to be absolutely watertight for anyone to take it on, and then they’d claim a large portion of your winnings for themselves. However, intellectual property cases are rarely watertight, because what actually constitutes intellectual property is a grey area indeed.

For a start, despite what you might see in TV dramas, ideas or concepts themselves cannot be copyrighted. Copyright applies to work that is fixed in a tangible form, which can include specific storyboards, website mockups, product prototypes, and so on.

Where the line should be drawn between inspiration and copying is similarly up for debate. So just because it’s obvious to you that your work has been stolen, don’t assume a court will automatically agree.

That said, almost nobody draws up an NDA expecting to take it to court. It’s almost entirely a deterrent, to make companies think twice before using the material you shared during pitching, without actually commissioning you to do the work.

 

When clients say no

 The other issue with asking your potential client to sign an NDA is, quite simply, that they might not agree to it. As far as they’re concerned, it’s extra work for them, and potentially extra expense in paying a lawyer to look over it.

 The client may also feel like demanding they sign an NDA at this early stage is getting the relationship off on the wrong foot. It can seem like asking a potential romantic partner to sign a marital pre-nup before they’ve even been on a first date.

“If you’re that distrustful of us,” they may think, “we probably don’t want to work with you anyway.” Especially if there’s a bunch of other freelancers already fighting for the commission, who aren’t making the same demands for secrecy.

So are NDAs for pitches a nice idea, but in practice a waste of time? Not necessarily…

 

Can you persuade someone to sign an NDA

Just because a potential client is disinclined to sign an NDA, doesn’t mean they won’t. It just means they need to be persuaded or you can use the potential of an NDA as a negotiation tool. And the keener they are to commission you as a freelancer, the more they’ll be open to persuasion. 

Asking a potential client to sign an NDA, then, is similar to any area of freelance negotiation.

For instance, it’s in the interest of most clients to pay you as little as possible. But from your perspective, there’s a point at which it’s not worth your while to do the job. So you employ all your charm, and highlight why you’re worth commissioning above other freelancers, and aim to meet somewhere in the middle.

When it comes to signing an NDA, there’s less middle ground, as it’s a binary decision whether or not to sign. However, there may be room for negotiation in terms of the content of the NDA and how detailed it gets. 

It’s also worth doing some research to find out how common it is for freelancers in your field to present NDAs before pitching. So hit up your fellow freelancers, ask for advice on forums and social media, and carefully prepare your case. That way, when the potential client says “That’s not our normal way of doing business”, you can counter with, “It’s actually pretty standard in my profession,” and have the details to back up your claim if necessary once you have them.

 But what if you find that it’s actually quite rare for freelancers in your field to use NDAs? In that case, take comfort that it can be a pretty standard business tool in general. Indeed, the potential client may well get you to sign an NDA yourself, to protect any business secrets they indulge during your pitch. So by presenting them with an NDA of your own, and making a strong case for them to sign it, you’re actually conveying your seriousness and raising your authority overall. 

You should also make it as easy as possible for the potential client to deal with the NDA in practical terms. For instance, you could ask whether there’s a particular e-signing platform they prefer, such as DocuSign or Adobe Sign, and join that service yourself (or just start a free trial) to smooth out the process.


 

When nothing works

You’ve tried everything, but your client is still refusing point blank to sign an NDA. At this stage, you have to ask yourself... why? 

Is it because they have every intention of stealing your ideas without paying you? Or is it that they don’t respect you enough to take you seriously? In either case, maybe this isn’t the best relationship to get into anyway.

Of course, freelancers have to pay bills and rent, and we’re not suggesting you should never pitch without getting an NDA signed. Sometimes, it’s just worth taking the risk, especially if we’re talking about big money and a client who could potentially boost your career. 

But at the same time, it’s worth considering your options carefully. Human psychology means we tend to experience loss far more deeply than we do gain. And you don’t want to spend the rest of your life railing against a client who used your work but never paid you.

 

It’s not just freelancers!

If all this sounds stressful, then at least be aware that it’s not just a problem for freelancers. Even fully fledged creative agencies, which have much deeper budgets and better legal protection than independent contractors, experience the same issues when pitching.

Pencil Studio, for example, presents a contract as part of its pitch stage that means no creative presented can be used by the potential client, unless they move forward on the project together. But even they get pushbacks on this.

They stand their ground, though, due to a bad early experience.

“When we were in our infancy, we didn’t have a contract when pitching for a project,” recalls owner Luke Manning. “Our ideas were rejected saying, ‘They were clever, but not right for the company’. 

“We moved on, and for a couple years didn’t think anything of it. And then we came across the product. It wasn’t a resemblance of what we pitched, it was the actual concept we pitched. But instead of kicking up a fuss or going legal, we decided to learn from this mistake, and make sure we had a contract to protect us.” 

Consequently, his advice to freelancers pitching on projects is simple. “Without an NDA or contract, you’re leaving yourself open to a similar situation,” says Luke. “So make sure that every element, every stage and detail of your process is in the document, including when the IP of the design is transferred from you to them. Then everyone knows where they stand.”

Tom May is a freelance writer and editor specialising in tech, photography and design. He is author of Great TED Talks: Creativity, published by Pavilion Books. With 25 years' experience in print and digital journalism, he has been working independently since 2016. He was previously editor of Professional Photography magazine, associate editor at Creative Bloq, and deputy editor at net magazine.

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