I recently commented on a topic on Quora:
“How do I showcase my work in my portfolio if I have been bound by the NDA?”
Short answer: “You can’t, because … NDA”
Common-sense context: Powerful corporations and their lawyers use considerable resource to craft documents which are often outrageously one-sided.
Disclaimer: I am not dismissing Non-Disclosure Agreements (NDA’s) outright. I merely acknowledge their purpose, intent and application. (Hint: They generally aren’t designed to protect you – as a service provider – or anything you do).
One of my first bigTime client projects was to design an interactive online database early in 1982 (“before we called it the Web”) at Bank of America’s headquarters in San Francisco.
Because the interactive capability of the service was primarily passive information retrieval (rather than actively transactional – it was still early daze), much of my mandate was to spice up the presentation of the 2000 pages of brochure-like content with illustrations and richly animated graphics.
I did this competently, using the tools and techniques available at the time (see for screenshot examples in my portfolio).
One afternoon towards the end of my tenure I was approached by a BofA lawyer. She presented me with a substantial document-to-sign and proceeded to outline the bank’s position regarding their “ownership” of the collateral I’d created for them. We had a revealing discussion.
Part of our discussion focused on an animation I’d created to illustrate the then-new-and-relatively-radical concept of “electronic funds transfer”.
I agreed that I should not and could not re-sell the images which I’d created for BofA because ‘work-for-hire’.
- My professional services include the creation of images-to-illustrate-concepts. It’s part of why people hire me.
- Bank of America does not own the concept of “electronic funds transfer”. (Nobody does.)
- As an interactive designer I will be working with other banks and financial institutions. Those banks and financial institutions will (obviously) also want me to illustrate “electronic funds transfer”.
- To prevent me from providing my design service to them is restraint of trade.
Clearly the Bank of America legal department overreached in their attempts to protect their business through an NDA. They were justified in protecting their own business. But they were not entitled to damage my business.
- Upper management demands excessive protections when they aren’t familiar with the environment.
- It’s a bank.
The lawyer herself knew that BofA was on shaky ground and she was more-or-less going through the motions. No hard feelings. We still enjoyed coke&sex afterwards (After all, it was the 80’s).
The object lesson
… for me, at least – was that
- NDA’s serve a useful purpose
- NDA’s will almost inevitably be abused by the client
- the NDA is an opportunity to discuss reasonable protections for you as a service provider
I guess that’s my cautionary admonishment. I’ve found that clients who approach NDA’s unilaterally generally aren’t worth the trouble. And there will be trouble.
So, let’s put the NDA into context … for UX
Usability is fueled by “best practices” and standards
Which don’t belong to anyone. Their value is that they are broadly shared and in the public domain.
Insight and Analysis have value
They’re ephemeral goods which are a service – not a commodity.
Design solutions are often creative
It’s the value-added that we bring to the table.
- My agenda: I’m generally not interested in reducing protections for the client, but rather in ensuring protections for me.
In any case, it’s a conversation you can – and should – have. If you can’t have it … then you may want to reconsider the relationship.
Perhaps we should view Intellectual Capital is an Investment
© The Communication Studio LLC