(By Shawn M. Yesner) There is a new “player” in the market providing another outlet to allow podcasters to connect with listeners. Most of the existing podcast players (Apple Podcasts, Spotify, Stitcher, etc.) will all accept your show with minimal or standard disclosures. Who reads all that fine-print stuff anyway, other than us attorneys? What happens, however, when you’re asked to sign a non-disclosure agreement (NDA)? Here are some things to look for in an NDA.
Before we get there, however, I need to provide the standard attorney disclaimer … If you’re asked to sign an agreement related to your podcast, please have it reviewed by a local attorney. Intellectual property laws and contract laws can vary state to state, so advice I may give a client in Florida would be different to advice you may get if you live in another state.
Basically, an NDA is just that; you are agreeing that you will never disclose certain information about the relationship between the parties, about the subject of the agreement, trade secrets, customer lists, payment information, insider information, or other “confidential information.”
The NDA should identify: (1) when and how the receiving party can use the confidential information, (2) when the confidential information loses its “status” as confidential, and (3) that disclosure to employees, attorneys, CPAs or other professionals, or the local, state, or federal government is allowed if used within the scope of the relationship with those third parties (disclosure to the receiving party’s attorney for some attorney-client purpose, for example). Some NDAs will require that any confidential information provided from the “disclosing party” to the “receiving party” be identified as “confidential,” however, check the language in the agreement.
You need to ensure that the NDA creates no transfer of ownership of the “confidential information” from the disclosing party to the receiving party; you want to avoid the podcast player owning your show!
Finally, you want to verify some boilerplate information. What state’s laws govern the NDA?Note that the laws that govern the agreement may not be the laws of the state where you live, so you may want to get the NDA reviewed by an attorney in your home state and/or by an attorney in the state that governs the NDA. Make sure that the NDA represents the entire agreement between the parties; in other words, if they tell you something verbally that is not in the NDA, the written contract usually has control over anything said verbally in negotiations. This avoids any “he said – she said” disputes. Finally, check that the NDA has a “prevailing party” provision, meaning if you have to resort to a lawsuit to enforce the NDA, the losing party will repay attorney fees to the prevailing party (again, check your local state laws, but this is a good clause to have in all of your contracts in case you ever have to see the inside of a courtroom regarding the agreement). Also note that this clause cuts both ways, so if you sue and lose you’ll have to pay the other side’s attorney fees and costs, as well your own attorney fees and costs.
Why might an NDA be used in the podcasting community? That’s a question I’ve been asking myself since I’ve heard about the use of an NDA by this new “player.” One logical explanation may relate to the use of metrics: downloads, subscribers, sponsorships, etc. In that context, the NDA may prevent a podcaster from describing these metrics to promote their show, e.g. “I get X downloads on such-and-such player.” Regardless, before you sign the NDA, please ensure you read it and understand it. If you need help understanding it, please reach out to a local attorney for help – that’s why we’re here!
Shawn M. Yesner is the founder and owner of Yesner Law, P.L., and an attorney in Tampa, FL. Shawn hosts The Crushing Debt podcast, which supports the purpose of the law firm – to eliminate financial bullies from your life.