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Reviewers & Non-Disclosure Agreements

MGibster

Legend
You may have seen that Games Workshop is under fire for an allegedly leaked non-disclosure form the company wants to have online influencers sign. i.e. These influencers get free merchandise in exchange for agreeing to the terms of the NDA. As far as role playing game companies, I've heard of NDAs for play testing but not in any other context. Do they exist for people who get advanced copies for review?
 

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TheAlkaizer

Game Designer
In video games there's embargos. Reviewers and media websites are sent early builds of the game with a NDA with a certain date where they can start talking about the game. It's excessively common. Developers even start to get some stone thrown at them when they embargo reviewer until the release date.

Is that close to what you're describing?

Also, seems like Games Workshop decided that they wanted their community to hate them this year. Must be like the fifth or sixth situation I hear of in 2021.
 

Aebir-Toril

100100101010
In video games there's embargos. Reviewers and media websites are sent early builds of the game with a NDA with a certain date where they can start talking about the game. It's excessively common. Developers even start to get some stone thrown at them when they embargo reviewer until the release date.

Is that close to what you're describing?

Also, seems like Games Workshop decided that they wanted their community to hate them this year. Must be like the fifth or sixth situation I hear of in 2021.
Not just this year, GW's taken the "torch the fandom" approach, taking down animations for violating copyright and cracking down on content creators who've criticized them.
 



Corrosive

Adventurer
An NDA is an agreement between two parties. Presumably these influencers agreed to it, in exchange for free merch? You can’t unilaterally force somebody to agree to an NDA. So I assume they could just not sign if they didn’t agree. Or am I missing a nuance here?
 

Yora

Legend
Sure, but then they don't get privileged access to new material and have to buy it when it's released.
Not that much of an issue with RPG books, but with videogames and movies, it's the first two or three days that count.
 

Rikka66

Adventurer
I'm in no way experienced in the legal or marketing fields, so maybe I'm about to sound very naive. I mostly think of NDA's in this context in terms of keeping people quiet about material you give them early access to see until a certain date as to not screw up marketing campaigns. I wouldn't send an influencer inexperienced in the industry product so early you need an NDA to keep their mouths shut. Just wait until you're ok with them talking about it the instant it arrives on their doorstep. Edit: If we're talking about review copies, even with a lowest on the totem pole influencer so you probably want some way to keep them from putting up early access behind a paywall of some kind.

Now once it gets deeper then that, hey, NDA is understandable. Depending on the contents, of course.

Edit: After spending a little time thinking over basically any scenario besides the one I mentioned above, I'll answer the actual question of the topic with "yes". But some NDAs are fairer than others.
 
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MGibster

Legend
Is that close to what you're describing?
Well, pretty close. The NDA agreement GW put out includes a very broad non-competition clause and the agreement lasts for three years from the last date GW sent the influencer a product of some kind. Effectively this means GW can keep the NDA in effect forever and there's no provision for the influencer to leave on their own terms.

Also, seems like Games Workshop decided that they wanted their community to hate them this year. Must be like the fifth or sixth situation I hear of in 2021.
Over the last few years GW really made some strides in generating some goodwill with their customers but more recently they seem hellbent on pissing that away.

An NDA is an agreement between two parties. Presumably these influencers agreed to it, in exchange for free merch? You can’t unilaterally force somebody to agree to an NDA. So I assume they could just not sign if they didn’t agree. Or am I missing a nuance here?
I think the nuance you're missing is that the two parties involved aren't on equal footing. GW has a team of experts who drafted an agreement that is entirely lopsided in their favor and send them to people who are unlikely to have a solid understanding of contracts or a team of experts to support them. And, yes, we can argue that people shouldn't sign things they don't really understand. But in cases like this I'm going to reserve my frowns for the large company with many resources rather than the little guy.

I mostly think of NDA's in this context in terms of keeping people quiet about material you give them early access to see until a certain date as to not screw up marketing campaigns. I wouldn't send an influencer inexperienced in the industry product so early you need an NDA to keep their mouths shut.

That's how I always thought of them. I remember signing up to playtest an RPG a few years ago and they asked me to sign an NDA saying I wouldn't talk about the system for a certain period of time. I thought this was completely reasonable but decided I didn't want to playtest for other reasons. When the GW NDA form was made public, I saw several people saying it was completely normal. But I've never seen an NDA with a non-compete and which seemed abnormal to me. At least here in the United States, non-compete clauses are very, very difficult to enforce. Judges are hesitant to enforce clauses that prevent someone from making a living in their profession.
 

MarkB

Legend
Well, pretty close. The NDA agreement GW put out includes a very broad non-competition clause and the agreement lasts for three years from the last date GW sent the influencer a product of some kind. Effectively this means GW can keep the NDA in effect forever and there's no provision for the influencer to leave on their own terms.
Sure there is. They can instruct GW to remove them from its marketing list and never send them anymore products.
 


MarkB

Legend
What part of the agreement did you see that option given?
It doesn't have to be in the agreement. There are provisos against sending unsolicited items and retaining contact details after being asked to remove them in common law in most countries.
 

Umbran

Mod Squad
Staff member
At least here in the United States, non-compete clauses are very, very difficult to enforce. Judges are hesitant to enforce clauses that prevent someone from making a living in their profession.

They are hard to enforce, but having to go into court over it can be expensive for the reviewer. Even if GW ultimately has to pay the legal fees, that comes at the end of the action, not early on. The reviewer can go bankrupt due to legal fees in the meantime.

It doesn't have to be in the agreement. There are provisos against sending unsolicited items and retaining contact details after being asked to remove them in common law in most countries.

That probably doesn't hold for someone who has signed a specific agreement to receive materials for promotional review.
 

MGibster

Legend
They are hard to enforce, but having to go into court over it can be expensive for the reviewer. Even if GW ultimately has to pay the legal fees, that comes at the end of the action, not early on. The reviewer can go bankrupt due to legal fees in the meantime.
Bingo. GW has deep pockets and I'd be afraid of going up against them in court even if I know I had a rock solid case. And, hell, according to the indemnity clause, it's the influencer who has to pay the legal fees even if the court rules against GW.

That probably doesn't hold for someone who has signed a specific agreement to receive materials for promotional review.
That's what I was thinking. And non of the lawyers I've heard talk about the NDA have mentioned anything about an unsolicited items loophole. I'm thinking if you signed this agreement anything GW sends you was not unsolicited.
 

Morrus

Well, that was fun
Staff member
Is there a link to this agreement? Everybody seems to know what's in it! I'm curious enough to take a peek.
 

MGibster

Legend
Is there a link to this agreement? Everybody seems to know what's in it! I'm curious enough to take a peek.
You can find it on Reddit in the Warhammer 40k Community page. There are also a few Youtube videos that go over the agreement and talk about what it means. Beware Youtube, some of those people posting about it are just unpleasant people you probably don't want to give traffic to.
 

Morrus

Well, that was fun
Staff member
You can find it on Reddit in the Warhammer 40k Community page. There are also a few Youtube videos that go over the agreement and talk about what it means. Beware Youtube, some of those people posting about it are just unpleasant people you probably don't want to give traffic to.
There’s zero chance of me watching any YouTube videos
 



Morrus

Well, that was fun
Staff member
Yeah just attaching it here for convenience.

bu9aci12n7p71.jpg
 

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