Episode 054: Honest Abe and the importance of written contracts – An NDA case study


Casey is an entertainment and digital media law attorney who helps influencers and creative entrepreneurs who struggle with navigating the legal side of their businesses and brands, specifically as it relates to contracts. She prides herself on helping creatives negotiate fair deals with Fortune 500 companies and leading entertainment brands, all while helping them build legally sound businesses that are built for generational wealth and impact. Here on the podcast, she normally does that through sharing the stories of successful entrepreneurs and influencers to help you learn from their mistakes. But occasionally, like today, switches things up and highlights popular culture. 

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Key Takeaways

 

  • Understand the contracts you use! In this case, an NDA needs to include every possible party in order to really work. Just because an NDA was signed by some parties in this matter, the loophole was that the vital party was not included in the contract.

 

  • Which brings me to the next point: Know your rights! Discovery exploited that oversight, in this case and it was legally within their rights. Morals and reasonable qualms aside, they did not break any agreements here.

 

  • Understand your constituted rights! In cases like these, it can be easy to fold when you don’t understand the basic rights that all individuals and entities are afforded under the constitution. We’re hearing a lot about the First Amendment, these days, because freedom of speech is a hot topic in politics and popular culture. If you are not familiar with the constitution, now would be a great time to brush up!

 

Show Notes

   

[4:25] – A brief background of the dispute:

 

  • Back in September while the country was abuzz about the presidential debates, Discovery Channel was in the midst of a legal battle about an Abraham Lincoln Documentary called, Undiscovered: The Lost Lincoln. Which centers around a never before seen photograph of Lincoln on his deathbed. This documentary has since aired, but it wasn’t without a fight! Discovery Channel had to overcome a temporary restraining order that was meant to block the airing of the documentary, due to an NDA.

 

[9:16] – How the First Amendment comes into play in this case:

 

  • On 10/2, a judge denied a TRO. “The Lost Lincoln is speech protected by the First Amendment and by the prior restraint doctrine,” writes U.S. District Court Judge . “The Lost Lincoln also constitutes speech on a matter of public concern… Plaintiffs argue that the prior restraint doctrine does not protect a party who has bargained away First Amendment rights by contract. However, it is undisputed that Discovery, the only party against whom injunctive relief is presently sought, is not a party to a non-disclosure or confidentiality agreement with Plaintiffs.””

 

Related article: 

https://www.investopedia.com/articles/investing/041315/how-ndas-work-and-why-theyre-important.asp

 

[10:40] – What is an NDA and how does it work?

 

  • A non-disclosure agreement, or NDA, is a legal document that keeps the lid on such sensitive information. These agreements may be referred to alternatively as confidentiality agreements (CA), confidentiality statements, or confidentiality clauses, within a larger legal document.

 

  • The exact nature of the confidential information will be spelled out in the non-disclosure agreement. Some NDAs will bind a person to secrecy for an indefinite period of time so that at no point in time can the signer divulge the confidential information contained in the agreement. Without such a signed agreement, any information disclosed in trust can be used for malicious purposes or be made public accidentally. The penalties for breaking an NDA are enumerated in the agreement and may include damages in the form of lost profits or possibly criminal charges.

 

Related Article:

https://www.investopedia.com/articles/investing/041315/how-ndas-work-and-why-theyre-important.asp

 

[15:38] – Key Takeaways

 

  • Understand the contracts you use!
  • Know your rights! Discovery exploited that oversight, in this case and it was legally within their rights.
  • Understand your constituted rights! Contracts go beyond the page. The government can play a role in how your contracts are inforced.

 

Resources:

Chat With a Legal Expert

NDA Template

Protect Your Assets: A Legal Guide for Online Entrepreneurs

 

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