It is the first time the trade association has taken a position on the matter, but the leading ad-agency association is taking action (via a white paper) because "in the last few years, there's been a tendency for marketers to ask for ownership of ideas," said Tom Finneran, exec VP-management services. "It is an onerous matter for agencies." (Download the white paper).
One agency executive was outraged that beer marketer Heineken recently asked agencies competing for its creative account to create work on spec, test it and hand over rights to the idea. The executive noted that several agencies refused to participate in the competition because of that request. Heineken did pay a stipend to participating agencies but the executive argues it wasn't enough: "Basically, they wanted to pay lunch money for a potential meal idea."
Hilton Hotels controversy
Several years ago Hilton Hotels set off a firestorm of protest among agencies when it asked contenders in a creative review to sign over their rights to ideas they pitched -- with no compensation in return.
Marketers request ownership for two reasons, said Candice Kersh, partner at Frankfurt, Kurnit Klein & Selz and a contributor to the Four A's paper. One, generally frowned upon, is to bank ideas; this has agencies most worried. The other is to avoid being sued in the event that an idea or concept created by an unsuccessful review participant is used -- intentionally or inadvertently -- in a campaign created by a different agency.
"Agencies need to know that just because they're given a document asking for rights doesn't mean they must sign it," she said. The paper cites alternatives to ceding ownership such as asking a prospective client to agree in writing that ideas presented in a pitch are owned by the agency.
According to agency new-business executives, developing speculative creative during the review process is a relatively recent practice, begun in the mid-'80s. During the past two decades, marketers have become more specific in their demands for creative output during a review. Agencies receive compensation for their costs and ideas less than half the time.
TBWA/Chiat/Day has a clear policy about idea ownership. "We never accept a stipend because we always retain ownership. In a pitch situation, we work with a prospect the same way we would with an existing client," said Laurie Coots, chief marketing officer worldwide. "We keep accurate records of resources, activities and document the value of all we've done."
The industry trend of expanding advertising beyond the confines of traditional media -- TV, print or outdoor -- is adding urgency to the issue of intellectual-property ownership. "Many times, reviews call for outlining business strategies, concepts," Mr. Finneran said. "These don't have a tangible form, so the agency has to proactively protect itself."
Added TBWA's Ms. Coots: "When you act like something [of yours] is valuable, others treat it like it has value too."