LESSONS LEARNED: NDAs Aren’t Worth It

By | December 9, 2017

When we first started Room 209 Gaming, we tried to do everything by-the-book by following accountant and attorney advice. One of the things we were advised to establish was a Non-Disclosure Agreement for playtesters. This NDA was intended to protect our intellectual property and reputation, and would also ensure that if we discussed game rules or the like with playtesters, they could not come back later and claim they owned IP that was discussed during a playtest or retrospective. At the time, it made a lot of sense.

After the first session of public playtesting, way back in 2012, we had a playtester attempt to vacate the NDA. Ultimately the NDA stood, but it hit us directly in the wallet. Afterwards, we largely withdrew from public playtesting and went invite-only. Frankly, we couldn’t afford to have that happen again. I was personally so angry and disgusted that Room 209 Gaming almost ended before we’d published a single word.

It was all very frustrating and very dramatic, but it taught us one very important lesson that we maintain to this day: For a tabletop designer, unless you are working on a licensed property, an NDA is not worth the hassle.

Why do I say this? After all, I have an experience with an NDA situation in which Room 209 Gaming came out on top. Why would I advise anyone else to avoid them? Well:

  • Copyright law only protects the specific expression of game rules, not the game rules themselves. So, for instance, if I have a mechanic I call the Midgard System that uses the middle of 3d10 to determine the value of a die roll, there is nothing in law that prevents anyone else from using the same mechanic and calling it the Mediocre Triad or something else. Your exact words are copyrightable, your engine isn’t.
  • Even if someone takes your mechanics, they haven’t taken your game. First, the game-buying public in general frowns on design-thieving to that degree, and whoever does it will in short order find their reputation ruined. Second, the thing that makes your game unique is your specific expression of the rules. Even if someone else takes your mechanic, they can’t take the fundamental way of looking at it that only you possess.
  • It takes work and money to transform any mechanic or idea into a functional, published game. The chances that someone will steal your idea, then also have the work ethic and cash to beat you to the punch in publishing that idea as a game, are virtually nil.
  • It takes work and money to enforce an NDA. And that work and money are better spent on your part making your game rather than worrying after what other people are saying and doing. In our case, we could have bought 3-10 more pieces of art with the amount of money we spent on attorney’s fees.
  • You’re specifically spending money and effort to get people to not talk about your game. Word-of-mouth is absolutely essential for building hype and community involvement. By trying to protect what’s virtually un-stealable, you’re shooting yourself in the foot by preventing your audience from growing.

Licensed properties are their own special thing. These usually have a brand or franchise manager, and they’re very careful about what gets out and about because they want to ensure the franchise grows and isn’t damaged by incomplete information. In these situations, it’s my understanding the brand owner will cover at least some if not all of the legal costs of the NDA (they are, after all, the ones demanding it). And when they’re handling the NDA, they can do whatever they want with it without expending the designer’s time and effort.

In the end, having the NDA did us no favors. It cost us extra money (four figures, for creating and enforcing it), it damaged goodwill between us and others, and the kicker is: nothing of that initial playtest session’s ruleset made it to the final game. It was entirely pointless.

So please, learn from our expensive lesson. If you’re considering an NDA, if you’re thinking someone might steal your game … let those anxieties go. They can’t steal the fundamental you-ness that will make your game what you imagine it to be, and there are way more cons than pros in creating an NDA. Save your money. Save your hairline. Design your game.

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