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Author Topic: Non disclosure agreement  (Read 360 times)

imagetone

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Non disclosure agreement
« on: May 12, 2017, 02:30:44 PM »

I'm wondering if other photographers (or lawyers) with experience of this, when asked to sign a Non-Disclosure Agreement as part of taking a job, have upped their day rate or added a fee, as there has to be some consideration (benefit) for the photographer for the NDA to be an enforceable contract.

I'm thinking of a situation where the information involved is of no possible commercial benefit or use to the photographer and the effects of disclosure are in effect a direct commercial loss to the client, lost revenue opportunity or negative PR.

Would the answer depend on whether the NDA talks about damages for disclosure? The client may argue the award of the job is the consideration, if the NDA is a prerequisite of getting the job.

The legal jurisdiction for the contract would be England and Wales but I don't think that affects the principle.

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BrownBear

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Re: Non disclosure agreement
« Reply #1 on: May 12, 2017, 11:15:46 PM »

Not sure about your ramifications for disclosure, but they should be spelled out in the contract.

The only comparable shooting I've done was contract work in locked down high security industrial sites, wherein I was "badged," as were each of my camera bodies.  Badge myself and my cameras through each gate or security door, then badge me and the bodies back out again. Perhaps a dozen times a day.  At the end of each day I handed my chips to the security director who downloaded them to their computer system, then erased the chips. Both I and my camera equipment were subject to search before departing the facility. Couldn't talk about what I saw (still can't), and I certainly couldn't use any of the photos, so in effect an NDA.

I pumped my hourly rates (actually doubled them), and since they never seemed to be in any hurry from setting to setting or in prepping the shots, I wasn't going to rush them. It was all on them to be ready for the shots, so I spent probably 50% of each day standing around or riding. In effect I was getting quad shooting rate.  Worked for me! They liked my work and my willingness to cooperate with all security arrangements, so it turned into a lot of shooting over the years. Yeah, I'd even come out of retirement to work for them again.
« Last Edit: May 13, 2017, 12:41:05 AM by BrownBear »
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Dominique_R

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Re: Non disclosure agreement
« Reply #2 on: May 13, 2017, 03:49:24 AM »

I'm wondering if other photographers (or lawyers) with experience of this, when asked to sign a Non-Disclosure Agreement as part of taking a job, have upped their day rate or added a fee, as there has to be some consideration (benefit) for the photographer for the NDA to be an enforceable contract.

I would think about doing something like that if the NDA had any impact on me, for example if one of its consequences was that I could never use any of the photos to illustrate my work, show to other prospective clients, etc., or if I was forced to hand over the contents of my cards like BrownBear recounts. Then, yes, the need would exist for some additional compensation, as those would not be market practice terms.

If the purpose and effect of the NDA is only that I can't talk about what I heard or saw during the shooting, but does not prohibit me from using the shots for promotional use or the like, then I am not subject to any genuine aggravation and the NDA is essentially a confidentiality agreement. I would not really be tempted to raise my fee in a case like this.

This is as an (occasionally professional) photographer and as a (permanently professional) lawyer.
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Joe Towner

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Re: Non disclosure agreement
« Reply #3 on: May 16, 2017, 03:53:43 PM »

So NDA's could apply to many types of situations.  Some examples are listed above, but know that in the end, what ever you shoot you may never get to actually use or take credit for.  Adjust rates accordingly as you're doing 'for hire work'.

If the NDA has an expiration date, respect the client and honor it.  If the NDA doesn't have an expiration date, build in the cost of new memory cards, as you may need to leave them behind.  If you can't keep what you see/shoot/etc secret, don't accept the job.

IANAL - but getting the job is a 'benefit', so I'm not sure where this whole 'has to be a benefit to the photographer' comes from.  NDA's are used all over for different purposes, some that don't have direct benefit to a person.
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Sharon VL

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Re: Non disclosure agreement
« Reply #4 on: May 18, 2017, 11:31:19 AM »

We have been asked to sign an nda that had the most incredible language saying that they could sue us, their children could sue us, their children's spouses ( current and future ) could sue us, any business they might ever own could sue us - the list went on and on. We didn't sign knowing we would not get the job if we didn't. We would have needed a lawyer to go over it. Sometimes its better to walk away. 

The client's rep was angry saying all their vendors signed it. That anger confirmed we had made the right decision.

BrownBear

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Re: Non disclosure agreement
« Reply #5 on: May 18, 2017, 02:55:31 PM »

We would have needed a lawyer to go over it. Sometimes its better to walk away. 

I wouldn't sign ANY legal agreement without a pass by our own lawyer.  It always seemed really foolish to me to sign a document prepared by the client's lawyer without getting legal advice of our own.
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Colorado David

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Re: Non disclosure agreement
« Reply #6 on: May 18, 2017, 07:35:55 PM »

I do work, both still and video, for manufacturers and defense contractors. I've signed NDAs for that work. I can't say anything about the defense work and have to be familiar with handling files that conform to the requirements of arms treaties. My normal industrial clients are interested in protecting their competitive advantage. Signing the NDA was a condition of getting the work.
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