Hello everyone,

I did a quick cursory search for this to make sure no one had asked a similar question but couldn't find anything. I've been a freelance composer for games and film for the last couple years. Recently, I've had someone contact me wanting to use an existing piece of music I had composed awhile back. They sent a typical release form and I had no problem sending it along. There was also talk of doing some additional work on the project, which I was open to. The director provided me with an NDA to sign before wanting to share any sensitive details. I've signed several before and have no problem with them. I understand people want to protect their stuff. No big deal.

However, this particular agreement had a clause at the end which I've never encountered before labeled a non-circumvention agreement. I did some research on it. If anyone has any other light to shed on this please do, but from what I've found, it's typically used in a lot of business contracts and partnerships to prevent either party from using names of business contacts or suppliers, then going behind the other party's back and "circumventing" them to strike your own deals, etc.

This is something I can completely understand and see its purpose in the business world. However, for my position as a composer, I'm not quite sure how this would apply to me and why. I can't give away exact details, but basically this paragraph in the NDA states that any contact I make through him (the director) is to be considered his "referral" and I am not allowed to do work with any of them. The length specified for this restriction is obscenely long. It seems several non-circumvention contracts I was able to look up in my research lasted for about 2 - 5 years. Let's just say with the time specified in this particular clause, the chances that I'll be dead by the time it expires are quite high.

So, by signing this agreement, it seems to me I would be nixing every contact I make on this project. Let's say 5 years down the road a producer I met through him on this project wanted to get together and work on something completely new. It appears this contract would not allow for that. I'm just wondering if anyone has ever encountered anything of this nature. I'll be discussing this with him shortly and I'm already pretty much dead set against signing that. I'm just looking to see if anyone has any other light they can shed on the subject to help inform me.

Working in the indie market, one of the most precious things is making and establishing new contacts. Especially when working for reduced fees. Cutting off the potential future chance to work with people I meet through this director just doesn't seem like a tradeoff that's worth the immediate work. Again, if anyone has anything to add to this, I'd be very grateful for the insights.

Thanks so much!

Darren

Without being someone who deals with this sort of thing regularly, the bottom line is that you shouldn't sign anything you're not 100% comfortable with. Every contract is a millstone around your neck, its terms determine its weight and for how long you must bare it.

By your own words and research, this person is requesting an unusually-long term on what seems to be a non-pervasive kind of clause (you've never encountered it until now as you say). That alone, to me, is a red-flag--but one that could be lowered by a willingness to address and re-word the contract. If this person refused to acknowledge your concern, pass it off as "standard practice", or work to reach amicable terms would end my relationship with that person, and I'd sleep better for it. Sometimes clauses like this are prudent for reasonable lengths of time, but when they over-reach they tell me that this person is trying to keep me in their service by unjustly limiting my mobility or ability to have other, perfectly normal professional relationships.

Address the clause with this person, tell them you are uncomfortable with it and why (scope, duration, etc), and give an example of a future business dealing that you worry would potentially fall underneath this clause. You can venture to suggest revised terms that you would be happy with, but as with any negotiation its usually in your best interest to have them name new terms first--if you must name them first, overshoot your goals to give yourself some breathing room for negotiations if they counter-offer. If they go first, but still want untenable terms, assert your bottom-line needs firmly. If, they are unwilling to negotiate or give up enough ground to make you comfortable at any step, fire a last warning shot -- Assert again that you are still uncomfortable with the terms (If they're close to your terms now, tell them so) and that you're unable to accept the contract until amicable ground is reached. You may have to walk away, but you'll probably sleep better in the end.

Of course, the terms you're willing to accept are colored by your life circumstances (financial needs, loved ones to support, etc) and what you stand to gain, and with that I have no advice that's relevant to you; just be very wary of selling your future so that you can eat today.

Sorry for the delayed response. Thank you very much for taking the time to reply!

Yes, you are correct. I would never sign something I'm not comfortable with. It's funny, you mentioned unjustly limiting my mobility because that's something that definitely crossed my mind. That particular clause, in essense, would make him a veritable gatekeeper from whom I would have to gain permission to work with others down the road I met through him. The more I think about it, the more it becomes a giant "no no" to me.

I'm going to bring it up to them and see what they say. If they're not willing to change that, I'll just walk away. Thanks so much for all you've written. You brought up some really good points.

On one final note, the main reason I wrote this was to see if anyone had come into contact with anything like this before. Just because I had not encountered it in my experience, doesn't mean someone else hasn't. But I find the lack of replies, the lack of someone coming in here and saying "This is standard, it's no big deal," to be a huge tell-tale sign for certain.

Best wishes!

Darren

It's a bit difficult to say without seeing the actual text, but the first rule of business contracts is that everything is negotiable. There are no "standard" or "market" terms, despite what many lawyers will try to tell you. But if they have significantly more negotiating power than you, it may be more difficult - for instance, if they use the same contract with 100 other composers then you may have more difficulty changing it, as they may want to use their cookie cutter contract without paying their counsel to change it on a case by case basis.

But normally, if the other side wants your product enough, they will work to reach consensus. Similarly, you should keep an open mind and be sensitive to the underlying causes / their needs. That clause is in their contract for a reason, whether it's to protect a legitimate business interest or because their lawyer copy-pasted it from a different contract. Once you get a grasp of the full picture, negotiations should go smoother.

So I would start by asking about this first. Don't go in with a negative "no no no" attitude, go in with a positive attitude, saying that this makes you uncomfortable because it excessively restricts your business and you want to find some way to accommodate their needs without hampering your future business.