Whose Idea Is It, Anyway?

Quit Giving Away Your Biggest Asset

By Published on .

Marc Brownstein Marc Brownstein
In our industry, many skilled people we rely upon to execute our work have their act together -- especially as it relates to owning and protecting their product. I'm referring to photographers, illustrators, animators, actors, directors and the like. Each of these talented resources values their talents, and ensures that they will be compensated for the results and usage of their work.

Not so the people that actually create the ideas. Yep, somewhere along the line, the advertising agencies forgot to protect their work, and now it's become standard operating procedure to give it away, both in new business presentations -- and, worse, when we actually get hired. This, at a time when Intellectual Property law is one of the fastest-growing specialties in the legal industry. Perhaps we can enlist some good IP lawyers to protect the rights of ad agencies to their own ideas.

A typical contract in our field stipulates that agencies get paid for our thinking and time. But then we allow the rights to the ideas to transfer to the client. Agencies that push back often don't get hired, or get tangled in sticky legal discussions at the outset of a relationship -- the time agencies and clients should be in their honeymoon. I often wonder: What if more agencies insisted on being paid for ideas and actually continued to own them after they were used?

Some shops, like Crispin, have begun to do that with some success. I believe it can happen more often, especially in agency-client relationships grounded in respect and trust. To quote the American Association of Advertising Agencies, "The best long-term, marketer-agency relationships involve an open, equitable two-way dialogue on goals, processes and economics."

How do we structure smarter agreements with our clients? A few suggestions:
  • Craft an agreement that reduces, somewhat, your upfront fees, in exchange for long-term ownership of ideas.
  • Provide term limits on usage.
  • Offer a premium for a buyout of an idea.
  • STOP giving away ideas in pitches without disclaimers. Ask the prospect to sign an agreement that you own the IP rights. I've seen too many ideas cribbed in pitches that we didn't win.
  • START respecting your valuable work.
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