Streamers and influencers in the interactive entertainment world occasionally receive information about brand campaigns or videogames, such as unreleased content, upcoming marketing materials, and the involvement of A-list talent. While streamers and influencers may wish to share this information, companies generally want to ensure this confidential information does not leak. Nondisclosure agreements, talent agreements, and other documents are critical to determining what information is "confidential." Mistakes can be costly. Here's what streamers, influencers, and other industry professionals need to know.
Confidentiality in talent agreements. A nondisclosure agreement – a so-called "NDA" – is a legal document the world is colloquially familiar with. Yet, many people have confidentiality obligations without ever having signed a stand-alone NDA. That's because many agreements, and not just NDAs, have confidentiality clauses. Talent agreements for professional esports players and influencers alike will often include some form of a confidentiality clause.
Streamers, esports players, and influencers are routinely hired by developers, publishers and brands to create marketing content to support the upcoming release of a game or product. These players and influencers may have access to unreleased content that will be used in the campaigns. This unreleased content is usually considered confidential information and subject to some kind of confidentiality agreement.
So what kind of confidential information may be covered by a talent agreement? Well, of course, the answer depends on the particular agreement. As noted, confidential information may cover a wide range of information and may even include the agreement itself or specific terms within the agreement – such as the amount a particular influencer or esports player is getting paid.
Publishers, developers, and brands pour massive amounts of money into developing content and promotional campaigns, the value of which may be diminished if the details of an unreleased game or campaign become public before their intended commercial release. Accordingly, the confidentiality provisions of talent agreements are taken very seriously, and a violation can spell legal trouble.
Yeezy leak. Indeed, some companies take confidentiality provisions so seriously that they also include a "liquidated damages" provision. Put simply, a liquidated damages provision specifies a certain amount of money that the developer, publisher or brand may seek if the hired streamer or influencer violates the confidentiality provision. Sometimes the specified amount of liquidated damages can be significant -- hundreds of thousands or even millions of dollars. Last year, THR reported that Kanye West's brand, Yeezy, had allegedly sued a former intern for posting confidential photos to Instagram. Yeezy sought to enforce a liquidated damages clause of $500,000 against the intern. It remains unknown how the case was resolved, though the result was likely also subject to an NDA.
DanAllenGaming leak. A more recent example of an influencer who found himself on the wrong side of a confidentiality provision is DanAllenGaming, a YouTuber known for reviewing games on his channel. Allen's popularity in the gaming world led developers and publishers to engage Allen to review unreleased games, whereby Allen was privy to confidential information, like unreleased content, launch dates, and forthcoming marketing campaigns.
Unbeknownst to these developers and publishers, Allen was simultaneously operating a separate anonymous account, "TheRealInsider," that became known for leaking information about unreleased games. This unauthorized release of information by Allen was in violation of his confidentiality obligations. After Allen inadvertently revealed his identity on Twitter, Allen apologized in a now-deleted tweet, writing, "I'm sorry to everyone for my actions [...] I'll be taking some time to reflect on my poor decisions, which will never occur again." While Allen has apologized, his legal troubles may have just begun.
Ubisoft later released a statement to Eurogamer, which reads in part: "We regularly provide access and information on our games under [nondisclosure agreements] to trusted partners...While we won't speak on an individual case, we do take these matters seriously and will manage accordingly." Although there has been no concrete update yet as to how Ubisoft plans to move forward, Ubisoft's statement strongly hints at potential legal action or a settlement on the horizon between the French game publisher and Allen.
Take-aways. Individuals engaged by companies should understand the boundaries of their confidentiality obligations. When entering into agreements that contain any mention of confidentiality, you should ask yourself some important questions to test your own understanding of the agreement. Can you discuss the agreement at all? Can you disclose that you're working with a particular brand? At what point will the confidential information be made public? Does any information remain confidential even after the object of your agreement becomes public knowledge?
Not knowing the answer to these questions can present real consequences not only for one's online persona, but also the financial stability of the brand built by anyone who operates in the online space. If you can't answer these questions on your own, consider consulting with an attorney who can outline these obligations for you.
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