When a developer joins a studio, whether as a full-time employee or an independent contractor, a nondisclosure or confidentiality agreement (NDA) is often part of the onboarding paperwork. NDAs are typical as studios want to protect unreleased games, proprietary technology, and internal processes. But developers who sign an NDA without reading carefully may find themselves in a difficult position years later when they need to demonstrate what they can do.

The Problem with Strict NDAs                           

A strict NDA that prohibits any disclosure of work product can quietly create a career problem. When a developer moves on from a studio, prospective employers and clients typically want to see examples of what the developer can do; that is, the developer’s portfolio. If prior work was governed by an NDA that doesn’t carve out portfolio use, that work may be effectively off the table, especially if the project never saw the light of day. When a project is cancelled, unless developers have a portfolio license, those developers may have no way to show their work on that project at all.

The Spectrum of Portfolio Licenses

Not all portfolio licenses are created equal. At one end, an NDA may grant automatic permission for a developer to use and display their own contributions for self-promotion, job applications, and similar purposes. These licenses typically carve out the developer’s solo contributions by default, with a process for requesting approval to include collaborative or mixed work.

At the other end, NDAs that include a portfolio license may require prior notice and written approval from the studio before any use by the developer, often on a case-by-case basis. This approach still provides a pathway, but it puts the developer in the position of needing affirmative sign-off before anything can be shown, with no guarantee of a timely response or approval at all.

Both structures are preferable to no license at all. Developers should understand what that license mechanism requires of them. And regardless, developers should be negotiating for portfolio licenses up front.

Employees and Contractors May Negotiate Differently

Independent contractors often have more room to negotiate the specific terms of their NDAs before work begins. Contractors typically negotiate the scope and nature of their contracts, and portfolio rights should be part of that conversation.

Employees at AA/II and AAA studios typically sign employment agreements or onboarding documents that are largely standardized and include NDAs, such as “Proprietary Information and Invention Assignments,” which can make individual negotiation more difficult. That said, asking about portfolio rights during the offer stage is reasonable, and some studios have existing policies or processes for handling portfolio requests that may not appear in the NDA itself.

In either case, the right time to raise the issue is before signing, not after a project is cancelled or an employment relationship ends.

What Developers Should Look For

Developers reviewing an NDA should look for whether any portfolio or self-promotion license exists at all. If the license exists, does it require pre-approval or is some portfolio scope automatically allowed? If the license requires prior approval from the studio, must approval be provided within a certain amount of time or not? Finally, does the NDA address cancellation of a project specifically?

A final but important note: sometimes developers don’t sign an NDA but do sign an independent contractor or consulting or work-for-hire agreement (or an agreement by another name)- those agreements often have confidentiality provisions in them. Developers should check all of their agreements for portfolio licenses and negotiate accordingly.

If an agreement is silent on portfolio use, developers should speak up and at least try to negotiate a license. Staying silent during negotiations might mean staying silent forever.