Thomas and his team had pitched a new account that had the potential to be a transformative piece of business for his shop. You know how it goes. They went for broke and pitched their hearts out. And they lost. That's a story as old as advertising. When he told me the bad news, I tried to take some of the sting out with my stock cliche: A big loss is the first step towards a big win.
That's just the beginning. Weeks later Thomas called me and in his quiet Zen-like voice said, "Hey, will you take a look at something and tell me what you think?" He had just seen the first print advertising from the account he lost, and it looked remarkably like the spec work that his agency had created for the pitch. He sent me a PDF that showed three of his concepts side by side with the work produced by the agency that won.
Seldom do people use the words ethics and advertising in the same sentence, and almost never in a good way. I took a look at the print concepts and there were some uncomfortable similarities, but the situation was not black and white. Like a lot of life, it was gray.
Concept 1: The new agency recreated the photograph from Thomas' concept verbatim. Different models, different photographer, but the scene and composition were identical. They changed the color of the background and added some special effects that helped disguise the similarities. The headline used the same sentence structure, although the new agency had changed the order of the words.
Concept 2: Thomas's agency developed an ad that showed couples in a romantic setting. The new agency also showed happy couples in a beautiful outdoor location, but with significantly different art direction and headlines. In this case, the photographs were too generic to claim that the new agency had copied Thomas' work.
Concept 3: Thomas' agency developed a Twitter concept with a branded persona that represented the company. The new agency created a Twitter page that used the same Twitter name that Thomas' agency had developed for the pitch, although the art direction looked somewhat different.
No question, some of Thomas' ideas had found their way into the new agency's work. None of us will ever know exactly how the campaign came into existence, or the thinking behind it, or how much might have been lifted directly. As I said, it's gray. A good lawyer could probably argue the case successfully either way.
Looking at this from the client's perspective, I would give them the benefit of the doubt. Unless the issue of ownership had been clearly established, it would be easy enough for them to assume that they could use the ideas presented by an agency in a pitch. They didn't outright lift the entire campaign. They borrowed a little here and a little there. It happens.
On the other hand, I know exactly what I would do as an agency if a client asked us to use another agency's ideas. Before even remotely considering the suggestion, I would insist that we ask for the agency's permission and negotiate a fee. That's just for starters.
What I'd really want to know is what the client hoped to achieve and why it apparently didn't let the new agency exert total control over the creative product. Clients should select an agency that has a powerful point of view and that relentlessly expresses its vision through all of the touch points that a company has with the public. I can't think of a better way to squander an agency's talents than by asking them to mix and match ideas from a variety of sources.
While Thomas may have the lost the pitch, he might still win in the long run. Not much good can come from a relationship where the client thinks that the ideas from two different agencies are interchangeable, and where the agency acquiesces, if indeed that is what happened.
When you find yourself in these gray areas, it's not always about right and wrong. Sometimes it's a sign of muddled thinking and a bad process. The best you can do is stand behind your own convictions and act with clarity. You'll occasionally get the short end of the stick. You might leave a few dollars on the table, and even lose a few pitches. If that 's what it takes to tell your kids and friends that you work in advertising with pride, it's a small price to pay.