NDAs and Clips: A Writer’s Guide

I saw an interesting post recently regarding the nondisclosure agreement (NDA). In it, the poster was asking how to show prospective clients the kind of work one handles if the NDA is in place. There are a few disturbing issues with the original post, but let’s start with the first issue.

#1: The poster wondered if a writer could negotiate with the client to use those clips in a portfolio.

Honey.

Listen.

No.

The entire idea of the NDA is to keep proprietary information private.  They have no intention of letting you share that. Depending on your NDA, you may not even be able to disclose that you work with them.  And in a bizarre twist, I had one that precluded me from mentioning my affiliation with the client until negotiations were over. I’m pretty sure they didn’t mean it to end there, but the contract was so badly written that yes, that’s exactly what it said.

When in doubt, read your contract.

Most contract language states that you cannot divulge information that is not public knowledge. They mean it.

The flip side of this is that if they make that information public, you’re off the hook. Once the info is out there, you no longer have any obligation to keep that information private.

But wait, there are more wrinkles to this.

If you have a wealth of knowledge about a client’s business and they divulge just a smidgen of that info, you are still obligated to keep the rest of it quiet. Why? Because there are competitors out there who can and probably will exploit that knowledge.

This is simple.

If it’s not public, keep your clam trap shut.

There’s another facet to this poster’s question that’s slightly more disturbing.

#2: The poster wondered if a writer could simply share the info anyway thinking it wouldn’t cause any harm.

Hell no.

Why bother signing the NDA if you’re going to violate it? You have no idea if that prospective client is a competitor, knows a competitor, or would think it’s okay to mimic (a.k.a. water down) your NDA client’s messaging. You signed it. You’re bound by it. You could be sued. You could be on the hook for a lot of damages.

That, my writer friend, causes harm. A lot of it. And you’re now being harmed too because you wanted to show a prospect a freaking clip.

Why would you?

You wouldn’t. It’s not worth it.

Depending on your contract language, there are ways to share your finished, published work without violating the NDA. I stress the caveat because dammit people, you have to read that contract.

Facts:

• If your NDA expressly prohibits use of the work you produce in your portfolio, don’t use it. It’s that simple.
• If your NDA stresses private information, there’s a chance you can use whatever has been published. In fact, if it’s online, it’s an easy share. However, make damn sure you’re allowed to disclose your relationship. Again, read the contract.
• If you signed the NDA, you cannot publicly talk about the projects you’re doing, nor in some cases can you even list the company as a client on your portfolio (have you read the NDA yet?).

That’s not to say NDAs are bad for you as a freelancer. They aren’t. They’re protection for your client. Let’s just call it a way for them to trust you before they get to know you. For them, this is a smart business decision. For you, honoring that reveals just how professional you are.

There are far too many freelance writers who are phoning it in these days. Sad to say, but simply playing fair with your clients wins plenty of points. Integrity is something you can use to distinguish yourself from the crowd.

That begs the question:

What can you do if you don’t have the clip to show them?

Fear not, writer. You aren’t without options.

• Tell the prospect you’re under NDA. You should do this if it comes up anyway, but all of the clients I’ve worked with have understood. They should. If you sign one with them, they’re going to be glad to know in advance that you stick to your word.
• Point them to online clips. Again, this depends completely on the type of NDA you signed, but a fair number of them cover just the nonpublic info.
• Write a sample. As much as I hate a free sample, it’s not a bad plan to have a few generic samples handy for this purpose. Use your own business as the client, if you must. Or make up a client.
• Detail the type of project you’ve done. You can’t mention the client or show the work. But you can tell the prospect the type of project you worked on, how it was received, and any measurables, like conversion rates, if you have them. An example: “The project I did for a global widget corporation included four sales sheets that augmented an existing ad campaign. The goal was to give the salespeople quick information and talking points for in-person presentations.”

Writers, have NDAs been a problem for you?
How do you share your confidential work while honoring your agreements?
Has it ever been a dealbreaker for you to not be able to share NDA-covered content?