A couple of months ago I wrote about the increasing number of RAMS (risk assessment and method statements) that photographers are having to submit. As is often the case, that prompted a question from someone who’d read the piece asking about a similar matter. This time it was NDAs or non-disclosure agreements. Oh boy! That opened up a can of worms. Some colleagues claiming that they always refuse to sign them, others saying that they often edited them before signing and others, like me, realising that they’ve become a fact of life and barely skimming them before adding their signature.

Before 2008 I genuinely don’t remember ever having had to sign an NDA. I always took it as read that if some confidential information was shared with me, it stayed confidential (I guess that would be unless there was some illegality involved but that never came up). A lot of my work was (and still is) editorial and releases are often embargoed – a system that I have always respected and abided by.

I signed my first NDA in late 2008 and ever since then the number, frequency and length of the documents has grown considerably. My first one was about half a sheet of A4 paper in a reasonably sized font. Some of the more recent ones have been two, three and four pages of tightly packed A+ legalese. Times change and lawyers get to dictate a lot of the changes.

I understand commercial sensibilities when it comes to information – especially when it refers to changes in senior personnel or new products. In the past, I have barely skimmed them and sign them as a matter of course because I suspect that if I didn’t agree then I’d be missing out on another commission. Frankly, half of the information goes over my head and most of the other half may as well have joined it. There’s the odd time when it is genuinely interesting and there’s been a few where I’d rather not have known but the NDA has become a fact of life – especially where commercial and corporate photography is concerned.

Before I started to write this I did a bit of a web search about NDAs and found the UK Government’s advice about them to be useful whilst tipping the scales towards boring. A lot of the rest of it was sample agreements and all of it was from the point of view of the entity wanting to protect their intellectual property or guarantee their commercial interests. That’s where I started to take a bit more of an interest myself because one or two of the agreements (mostly from the United States) also included clauses that attempted to grab the intellectual property of the person or persons signing the document. In the case of photographers that could amount to either a copyright grab or a severe restriction concerning future use of the images or information once the NDA expired. That’s where another problem arises – some of them don’t have a time period. Essentially, as far as you, the person agreeing to be bound by an NDA is concerned, it remains secret forever – even when the information is old news and has been in the public domain for a while.

Again, don’t get me wrong, I take my relationships with clients really seriously and there’s quite a lot of information that I pick up that I would never divulge. That’s just good business and good manners but being legally constrained from doing so beyond any period of sensitivity doesn’t feel right to me. You know the score; Company A is appointing a new CEO and you have been asked to shoot their portrait for a press release and you get an NDA. The next day the whole world knows but you are still bound by the agreement you were asked to sign.

Thinking about the topic has moved this beyond a simple blog post. I have updated the sample terms and conditions published on my main website to widen what I had to say about GDPR and now includes a sentence about commercial confidentiality and NDAs.

To those colleagues who said that they read all NDAs and sometimes edit them before signing I’d like to say “you’re right and I will check for unrelated or unfair clauses before signing from now on.”

In my opinion, photographers asked to sign any non-disclosure agreements should do the following:

• Speak to the client about the terms before the document is created. That includes the length of the agreement and the breadth of it.
• Check for clauses that are at odds with that discussion and any that are unnecessary or unfair.
• Read it throughly before signing.
• Keep a copy for your own records and if necessary lodge a copy with your legal representative.

NDAs are inconvenient and often take up your time. When quoting for jobs you need to make sure that any complex documentation (RAMS, NDAs and contracts) and the time and costs of dealing with them is included in your costing. As my piece about RAMS said

“I doubt that I am being remotely controversial when I say that no photographer wants to do more paperwork than is absolutely necessary. Time spent filling out forms, dotting the i’s and crossing the t’s feels wrong – especially when your work and your passion is all about the creative process.”

All the more reason for making sure you are compensated for having to do it.