Updated: Mar 4, 2019
One of the surest signs you are new to screenwriting is to ask a Producer or script reader to sign a Non-Disclosure Agreement (NDA) before you send them your screenplay.
NDA’s are typically not signed in the industry before a reader reads a spec script. In fact, some Producers will refuse to read your submission simply because you asked.
Non-Disclosure Agreements are simply agreements that say “I’ll show you what I’ve written, but you can’t use it without paying me.” Fair enough. The reality of story telling, however, is there are no new ideas. Humankind has told the same basic stories for thousands of years. The situations and circumstances of the characters change, but the stories all derive from one basic idea - a protagonist must overcome an obstacle (usually a series of obstacles) to accomplish an objective.
NDA’s provide the writer a certain degree of comfort their idea won’t be used without compensation. In many industries they make sense. Even in screenplay writing they make sense at a certain point. The challenge in screenplay writing isn’t if a NDA should be negotiated, but when it should be negotiated.
One of the best indicators I found of whether I needed a NDA before sending the screenplay is whether the Producer asked me to sign one. There were more than a few Producers who requested the screenplay, but whom I chose to not send after doing some basic research on them. What I learned was to do my research before sending my query – not before I sent my screenplay.
Credible Producers will often ask you to sign a NDA they provide either before – or when – they ask you to send your screenplay, or, alternatively, at the time they option or offer to buy the screenplay. Although NDA’s ostensibly protect the writer, they more often are written so one-sided they only serve to protect the Producer. Given the number of submissions Producers receive, they want to ensure they aren’t sued if they come across a story similar to yours at some later date.
Many Producers will not negotiate the NDA they send if you are a first time screenplay writer - take or leave it. If you’re negotiating an option or sale, however, you should seek legal advice about protecting your rights should your screenplay – or more likely a portion of it – be used in a later production.
There are Producers who will read a spec script before asking for a NDA, but these are typically known producers dealing with writers they know directly or through others. In reality, most producers never actually read the screenplay at first. They pay readers to read and score the screenplay. If the screenplay gets a “Recommend” rating – very few do – the Producer may end up reading it before making an offer, but even that is not a given.
Selling a spec script is difficult enough without the added challenge of asking for a legally binding contract before they even know if they’re interested. If you’re offered a NDA you should feel some level of comfort in that the Producer is at least wise enough to protect his legal rights before subjecting themselves to lawsuits should they find a similar story told better.
Once you’re negotiating the option or sale of your script, however, you have a little more room to negotiate a NDA. If the Producer is interested enough to give you money, he’ll likely be interested enough to give you a level of assurance that you will receive credit and money for your creation. Prior to that, you’re just showing him you’re an amateur who doesn’t understand the practices of the trade.
NDA’s can be tricky beasts to write and negotiate. The best NDA’s spell out the expectations and prohibitions of each party, and the length of the agreement. Screenplays have a shelf life, and entering an open ended NDA that prohibits you from pitching your screenplay to others while a Producer takes his time deciding whether to option or buy limits your ability to earn a living. Yet, many NDA’s I’ve been asked to sign do not limit the time of the agreement.
Whenever you’re looking at a proposed NDA remember to ask yourself whether the terms of the agreement are mutual, and do the terms have a rational business basis? Remember, the purpose of the NDA is to protect your execution of an idea, and to protect the Producer from you later claiming they stole an idea from you and turned it into a movie masterpiece without crediting and compensating you. If the terms of the proposed agreement do not meet these goals, they are likely unnecessary, and may be challenged in court if claims are made against either party.
As in most things in life, if you have an uneasy feeling about someone there is usually a reason. Do your research before you query a producer. There are a lot of indie filmmakers – some credible, some not so credible. Knowing something about the person you’re querying will save you time in the long run. Sending a drama spec script to a comedy producer wastes your time and his, and leaves a bad memory of you when you write that blockbuster comedy in a couple of years and start querying again.
NDA’s do serve an important function.
Like all contracts, they allow both parties to know what to expect from both parties. If you’ve written a screenplay that has commercial value, there will come a time for you to negotiate and sign a NDA. Asking potential readers to sign one before that time comes puts an unnecessary obstacle on your path to becoming a professional writer.
Michael Selby is guest writer for Script Society. He is an attorney turned screenwriter who has extensive knowledge of the legal aspects of screenwriting. He has recently sold a spec script of his own.