Woolley Marketing: Is advertising IP worth anything… or nothing?
In his regular column for Mumbrella, Trinity P3 founder and global CEO Darren Woolley wonders how agencies can best protect their valuable creative work produced as part of client pitches. A Banksy-style self-destruct mode is one colourful idea.
An agency is invited to pitch a new client. They come a close second in the process, only to see their idea, or something very similar, appear for the client a few months later. The agency is rightly angry and takes to LinkedIn to accuse the client of stealing their ideas.
Another client, wanting to avoid this situation, invites agencies to participate in a pitch for their business. But to be part of this, the agencies must sign a non-disclosure agreement that happens to have a clause requiring the assignment of all intellectual property arising from the process to the client. For a modest pitch fee.
Copyright Dennis Flad – reprinted with permission
In Silicon Valley it was known as ‘brain rape’. A gross and callous term for a similar act – stealing someone’s ideas, expertise and knowledge without due recognition or compensation.
The same could be said in the various rooms where agencies are asked to pitch their ideas for a chance to win a new client.
In the first example, the ideas presented mysteriously appeared in the client’s advertising without the agency winning the business. In the other, the agencies gave away their rights to the ideas they created.
So, who is in the right, and who is seriously wrong?
The Copyright Act means that at the time of creation, whether recorded, in writing, illustrated, or in any other material way, rights exist for the creator. These rights can then be either licenced, shared, or transferred.
In the case of employees, these rights are vested with the employer. Most agency contracts vest the rights to the client on the payment of the agency fee.
If there is no agreement between the parties, then the rights remain with the creator. This is why, when clients see an idea or concept that they love from an agency they are not in love with, we advise they negotiate to licence or buy the concept.
Of course, some marketers may think they can get away with taking an agency’s ideas. And perhaps they can. Litigating a copyright infringement is expensive and the process is complex.
To avoid this legal situation, other advertisers will insist on agencies assigning all created intellectual property, eliminating the possibility of any of the agencies having their rights stolen, because they are required to give it away.
This is, of course, a commercial decision for each agency to make. Assigning their intellectual property is set as the cost of entry. An agency willing to do this is effectively gambling with the cost of their intellectual property.
But for those agencies that value their intellectual property, it is time to take steps to protect it.
One way, which few agencies take advantage of, is the use of the copyright mark. © Putting the copyright mark on agency work sends a signal to the client it was developed for that the agency values their intellectual property.
Then you can enter a potential new relationship with something of value, beyond the talented team you will be negotiating to rent to the client by the hour. You will have declared the existence of the idea as intellectual property, protected by the Copyright Act, and something you as the agency own.
Okay, so even if the agency adds the copyright mark, an unscrupulous marketer could still steal the idea by handing it to the preferred agency. And the agency that owns the copyright would still need to take legal action at financial expense to the agency.
But the copyright mark will certainly cause the marketer, or at least their legal advisers, to give pause before stealing it.
What better way to demonstrate your belief in the value of your intellectual property?
And if all else fails, you can always take a leaf out of Banksy’s playbook…
Darren Woolley
Darren Woolley is the founder and global chief executive officer of Trinity P3.
It’s nearly 30 years since I first started writing about adland and I can’t even believe this is still a discussion.
The fossilised remnants of accreditation where the creative and the idea was just free steak knives. Takes me back to our podcast when I left the game. A change in revenue streams with loss of the free media kickbacks that enriched so many agency execs that the industry has still not really come to terms with.
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Richard that will depend on the agency and client agreement. If there is no agreement, then all IP created by the agency is owned by the agency until transferred to the client through mutual agreement. (This naturally excluded any pre-existing IP in the concept that belongs to the client already, such as a logotype or packaging etc.)
If a contract is in place that all IP created is vested or transferred to the client, then even if the concept is rejected, the IP is to be transferred to the client.
To better understand your current agreements with your clients, I recommend getting legal advice from a qualified lawyer, ideally a specialist in Intellectual Property law and with a commercial focus.
Question for Darren, if a concept is presented by an agency and rejected by a client, is that IP still owned by the client?
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If you’re billing me for the team under retainer or even as a project fee (unless it’s stipulated otherwise), you bet we do.
It’s also worth considering that in the case of paid pitches – specifically a token payment – it is often more to do with addressing internal legal concerns than being about goodwill towards participating agencies.
You can be certain if a dispute arose over two similar ideas in a pitch, that token payment would likely favour us clients.
Not legal advice – just a seasoned clientsider who’s heard the same thing for two decades.
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