Great ideas have been had — and stolen — for hundreds of years. In advertising, many great ideas have been repeated and, yes, taken by others for financial gain.
Although laws have become more favorable toward intellectual property (IP) owners, there are many gray areas and nuances into what comprises intellectual property, especially when it comes to advertising and the ideas that bring it to life.
Whether pitching to win a new client or bringing new ideas to an existing client, agencies invest a great deal into creating the campaigns, strategic plans, and other assets that comprise the pitch. With BrewDog made headlines recently for using what its ex-agency claims was its idea for the beer company's 'Punk AF' campaign, now is a good time for agencies and creatives to make sure they have the processes in place to protect their IP. The Drum talked with agencies, lawyers and trade organizations for their input on the matter.
“Whether we know it or not, there’s an honor code in advertising. Ideas are owned by the ideator and those who take ideas are, well, dishonorable. Everyone will know it. And they’ll wear that proverbial scarlet letter for the rest of their careers,” said Andy Nathan, founder and chief executive of agency Fortnight Collective.
In the US, before 1978, it was much easier to steal ideas. Creative theft was rampant in the music industry, and it was more common practice in other creative fields as well, including advertising. But that year the Copyright Act of 1976 took effect, stating that copyright protection extended to all “original works of authorship” to take into account new types of media.
This essentially gave the power to the creative who came up with the idea, according to Doug Wood, partner at law firm Reed Smith and the Association of National Advertisers (ANA). He said that absent any contractual agreement between the parties before spec or actual work is started that dictates the ownership of IP, the ownership stays with the agency or creative.
“The only way the ownership of copyright can change hands from the person who created it in today’s copyright act is to ask to enter into an agreement of that effect. Otherwise, it stays with the creative. That was a big change that was made in the  Copyright Act. It shifted from the ownership of the person who paid to the person who created, so we would be like the rest of the world. That was a big change,” Wood stated.
He mentioned that, in the spec process, when a brand solicits an RFP and asks the agencies for spec creative (and the agencies are willing to do spec creative), often those agreements will have provisions in them that outline the ownership of the creative. “Where an advertiser will pay for a speculative pitch, the default is that they own whatever you pitch. When they don’t pay for a pitch the default should be that they don’t own what you pitch,” Wood said.
While that scenario seems fairly cut and dry, there is a huge gray area of speculation, which is where intellectual property laws get problematic. With some pitches, a brand may see similar ideas from multiple agencies, and then the dilemma for the brand becomes what they can and cannot use, which gets into the vague area of what an “original expression” is and what an idea is.
In the context of creative pitches, the gray area issue is of expression versus idea (originality versus similarity to whatever idea a brand uses) compared to the expression of the idea that the agency presented. “It’s eyes of the beholder,” said Wood. “You put them side by side, you try to find a similarity, you try to convince a judge that they took a substantial amount of how you expressed those ideas. On the other side, the defendant is going to say, ‘We don’t deny we took those expressions but a) they weren’t original, or b) they were copied in minimal amounts and constitute a totally new expression; we’ve transformed it into something else.’
“Rarely do these cases come down to a court deciding this because the grays are so deep that most people end up settling in some fashion, and there’s usually [copyright] insurance behind all this, too…and the insurance companies are loathed to go to a jury in any circumstance.”
A global problem
The battle for IP happens across the globe. The 4As in Malaysia has seen an ongoing problem with unethical demand clauses in prospective clients' request-for-proposal (RFP) documents; for example, ‘all materials submitted in response to this RFP become the sole property of the advertiser.’
The chief executive of the 4As Malaysia, Khairudin Rahim, penned a letter noting that both the 4As Malaysia and the Malaysian Advertisers Association had taken efforts against certain advertisers but the problem still exists.
“Beyond reiterating our previous statement that such clauses are unethical and unfair, we have also legally been advised that these clauses are impotent and ineffective from a legal standpoint, as they do not provide a binding relationship between the Agency and the Advertiser in a situation of a service being provided where no formal contract or letter of appointment has yet to be signed…. The 4As has therefore reminded Agencies not to participate in any RFPs containing these conditions. Our stand has always been, and will continue to be, that Agencies should learn when to say 'no' to such unfair demands,” Rahim stated.
In the UK, the Institute of Practitioners in Advertising (IPA) told The Drum that it has seen similar demands from advertisers. When some clients invite agencies to pitch, they ask those agencies to sign an NDA assigning all their IP to the client. IPA deems this unacceptable and warns its agencies to be vigilant against it.
While no solution is completely foolproof, there are steps creatives and agencies can take to protect their ideas.
"The 4A’s recommends that an agency should preserve ownership of its ideas, plans, and work product presented during the course of a pitch through a formal agreement with the marketer,” said Matt Kasindorf, senior vice-president, agency management services with the 4A’s in the US.
"We've collaborated with the ANA on detailed guidance to align marketers and agencies on this matter. A marketer doesn’t have ownership rights over the ideas, plans, or creative work an agency develops during the pitch process, unless that has been agreed to in advance, and the marketer pays a fair and reasonable fee to own that work. And this fee would be separate from any pitch stipend the marketer pays the agency.”
Kasindorf said the 4A's also recommends that agencies engage legal counsel with expertise in this area.
Reed Smith's Wood said that fixing the issue from the outset with a simple agreement is best, but when that doesn’t work — especially for a freelance creative who may not have deep pockets — the group Volunteer Lawyers for the Arts has lawyers who work pro-bono to defend creative property issues.
The IPA encourages its agencies to mark everything they present or provide to their clients in the pitch process as confidential and copyright protected. It offers a ‘Pitch Protection Scheme’ and a ‘Pre-Pitch NDA’, as well as an agency guide at its ‘Pitch Centre’ on its website.
The 4As Malaysia offers similar advice and states that it is available to its members for information on the matter.
Fortnight Collective's Nathan said his agency makes it clear upfront “what ideas the client partners can walk away with as their own.” He also promotes a collaborative process, so the agency and client’s ideas are intertwined. And, he said, instead of long, drawn-out pitch processes, they use rapid-fire ad hacks, so there is no time to steal ideas.
“In a perfect world, we wouldn’t have to worry about protecting intellectual property and the honor code would be solid as oak. But in the meantime, we can update some of our thinking, to be faster and more collaborative, so at least it’s a world where everyone wins — without cheating.”