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The Importance of Nondisclosure Agreements

by Jane Cowles

Nondisclosure agreements are the essential ingredient to protecting your work as an artist. Before you have any discussion about creating, licensing, designing, or selling a body of work you must let the other party know the information you are sharing is confidential.

“Why?”

“Isn’t a verbal agreement enough?” 

“Doesn’t everyone know that the work I am sharing is mine?”

“I have a copyright filed, they can’t share it.”

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Make no assumptions. How many times have you heard, “she stole my work”? You must take every step to safeguard your work product. People use images of artists’ work found on Instagram and websites without giving proper credit to the artist all the time. When you make a nondisclosure agreement part of every business negotiation you enter, you protect your work from being used without your permission and you protect your financial interest in your work.

Terms Of A Nondisclosure Agreement

Where do I begin? How do I write a nondisclosure agreement?

It is always best to consult with an attorney. However, if you cannot speak to an attorney, it is better to create one on your own than not use one. A nondisclosure agreement contains  key clauses.

  • Who is bound to confidentiality? Is the person you are sharing information with the only person who must keep the information shared a secret? Does this person have employees, agents, or advisors who must keep the information secret as well? Are you obligated to not speak about the terms of the agreement?
  • Describe the confidential material using specific details including size, color, etc.
  • List how the artwork/designs will be used. For example, the blue umbrella print will be used to create a series of pajamas to be sold in Acme stores in New Jersey, New York, and Connecticut.
  • Duration
  • Fees & Payment Terms
  • Damages for Breach of the Agreement
  • Name the state or jurisdiction whose laws will be used to rule on the case in the event a dispute arises.

Email Confidentiality Notice

A notice below your signature in an email makes the recipient aware that the information being shared is for their eyes only. This notice acts to protect you when you share information because the recipient cannot claim they were not aware that you were sharing confidential information. See an example of a confidentiality notice below:

This message (including any attachments) may contain confidential, proprietary, privileged and/or private information. The information is intended to be for the use of the individual or entity designated above. If you are not the intended recipient of this message, please notify the sender immediately, and delete the message and any attachments. Any disclosure, reproduction, distribution or other use of this message or any attachments by an individual or entity other than the intended recipient is prohibited.

This information is provided for general informational purposes only. No information contained in this article should be construed as legal advice and does not establish an attorney-client relationship.

Jane Cowles is an attorney focusing on contract law, business law (start-up, planning and restructuring), tax law and art law. She has over 10 years experience working with business transactions at boutique law firms and as a tax advisor for Ernst & Young. She has a solo practice in Rockland County and advises creative professionals, small businesses, and entrepreneurs. She is available to help with all the challenges individuals and business currently face with the COVID19 pandemic. For more information, visit her website www.janecowlesattorney.com or email her at jane@janecococowles.com. She is offering 30 minute FREE consultations by telephone or video conference. 

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Nyack People & Places, a weekly series that features photos and profiles of citizens and scenes near Nyack, NY, is sponsored by Sun River Health.


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