Ask Mary-Margaret:
Proposing Your Game Idea

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The Ins and Outs of NDAs Proposing to the Publisher Proposing to the Investor

I want to present a game idea to a publisher, and I'm concerned about Non-Disclosure Agreements. What is the exact purpose of an NDA, do I have to sign one, and can I use my own instead?
- Legally Challenged in Los Angeles

Mary Margaret says: Part of my job at 3DO was reviewing external game submissions and handling the Non-Disclosure Agreements (NDAs). In order to protect themselves, most companies require anyone who submits a game idea to them to sign an NDA. There are several basic elements to the NDA: the person submitting the idea verifies that it's their original idea and they hold all rights to it; that there is no guarantee of the company being interested in the idea; that there's no offer of employment or work implicit in the company viewing the idea; and they indemnify the company from any liability in case the company is already developing a similar idea.

That last bit is the main element of the NDA. The company has to do this in order to protect themselves from situations of conflicted ownership. For example, if a person submits an idea to a company for a baseball game and the company is already working on a baseball game, the company can create a situation of liability if they view the submission without an NDA. The person submitting the baseball game idea could later claim that some of their ideas were used in the publisher's product, even though those ideas were developed inside the company. The bottom line is that the company has to protect themselves from an outsider claiming ownership of ideas that were more than likely developed internally.

There have been several famous lawsuits in the film industry over this kind of situation.

It is highly unlikely that the company will allow the use of an outsider's NDA over their own. The company lawyers have tailored the company's NDA to suit the company's needs… they're not going to want to spend time revising someone else's NDA.

As I said above, almost all companies will not accept external submissions without NDAs. Other companies will not accept them at all. It should also be noted that it is EXTREMELY rare for a company to develop a project from an external submission of just a game idea (it's more likely if you bring an experienced development team with you to build the entire project under a "development and publication" contract.) In my four years at 3DO, I only saw two external submissions that were accepted for development by external, established teams, who ultimately signed a Dev & Pub deal and were assigned an external producer. The company is more likely to try to hire the person who made the submission if they feel that person has strong talents. But even then, it is rare that you'd work on the idea you submitted.

So your next question probably is: "But if they can claim that they already had the idea under development internally, how can I protect myself from that?" The basic answer is: you can't. Every time you submit an idea to a company after signing a NDA, you run that risk. The odds of it are slim, though, because even with the NDA, the company won't want to take the risk of you suing them. The trick is to do business with ethical companies only. Keep in mind that this is a longshot, particularly if you don't have the resources to develop the project yourself. As Ellen likes to say, "Ideas are cheap, production is hard."

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Proposing to the Publisher