A small agency’s claim of 'stolen' work points to a larger industry issue

Brandon Ball, CEO of a small agency called Starch Creative, took to Instagram in late January with an irate post. In it, he claimed that Laird Superfood, an Oregon-based organic coffee and food maker, had appropriated the shop's work. Starch said it responded to an unpaid RFP, or request for proposal, under the promise that the brand would pay the agency should it choose to commission the work. Ball said that the client did not choose the agency's idea. But then Laird Superfood posted to its Instagram an activation it was running at the Toyota U.S. Grand Prix of Snowboard and Freeski at California’s Mammoth Mountain from January 6-8, 2022. The pop-up included a canvas tent and hot drink bar that bears a striking resemblance, the agency claims, to Starch Creative’s pitch. To prove it, Starch posted on Instagram its concept sketches that depict a safari tent that unfolds and packs up easily from wooden storage crates. The interior houses a bar to serve the client’s plant-based hot chocolate, coffee and creamer. Buy your ticket for the Ad Age A-List & Creativity Awards Gala at AdAge.com/ACGala. View this post on Instagram A post shared by Brandon Ball (@brandonball) The client denies that is the case. “Laird Superfood has the utmost respect for the creative process and the teams we work with," said Jason Vieth, CEO, president and director at Laird Superfood. "The allegations from Starch Creative are absolutely false and were brought to our attention via Instagram without any prior conversations. We are currently in the process of preparing a defamation complaint to protect the Laird Superfood brand. As a company, we are built on transparency and integrity and remain deeply committed to maintaining those values in every facet of our business.” View this post on Instagram A post shared by Laird Superfood (@lairdsuperfood) Vieth told Ad Age the brand approached multiple agencies with an RFP that already had ideas for a yurt or log cabin pop-up attached and that "any similarity to other proposals is likely due to the specs we included in the RFP and the consistent visual nature of a Swede Hut and yurt style structure." While Vieth declined to name the agency that created the activation, he offered an anonymous quote from the agency: "Regarding the Swede Hut project, at no point during the RFP or design process was any creative concepts or visual inspiration shared with our design team from the Laird Superfood team. We were provided with an RFP that outlined the project scope and estimated budget for the project." The true story of what went on between this client and Starch, an experiential, retail launch and brand design shop that has worked for clients like Adidas, Coca-Cola and Vans, isn't fully known—Ball was unable to comment given "anticipation of litigation." But the issue of agencies not getting paid for their pitch ideas is all too familiar in the industry. “This is a problem we are all very aware of, but never discuss,” said Ball. “You would be amazed at how many agencies and individuals have reached out to express their frustrations with this issue, how many times their work has been used, and how they felt they have no recourse. Individuals and companies alike have stated they are afraid to step forward when this happens to them and sue, and with good reason.” A longstanding issue Ownership of work and fair compensation has been a sore point for the industry for decades. “This has gone on for as long as I can remember,” said Nancy Hill, founder of consultant Media Sherpas and president of the 4A's for nearly a decade before departing in 2017. Last July, in fact, Ad Age spoke to 15 agency executives about bad practices they have seen during RFPs which included agencies being ghosted, abnormally long pitches, faceless Zoom screens during pitches, and uncompensated work after a pitch. “In the old days, since you can’t rely on trademarking your work but you can protect your work as your own intellectual property, we would do things like mail a copy of the presentation to ourselves and not open that presentation so that you could show the date because a postmark is a legal document," Hill said. "But things have changed dramatically with the advent of digital clients. Clients will try to say that there's no way to protect your intellectual property in a pitch, because if there are four agencies, chances are that two will show up with a similar idea.” Unpaid vs. Paid RFPs For agencies, the pitch process can be a damned-if-you-do-and-damned-if-you-don't situation. Consultants say that if a shop does a pitch for free, the work can't be stolen. But when agencies are paid for a pitch, the compensation is often too meager. "Unpaid RFPs by leading marketers is the fairest way to manage the creative agency's IP,” said Matt Ryan, CEO of Roth Ryan Hayes, an agency search firm. “By not paying, the marketer does not have the right to use the presented material without compensating the agency. Paid RFPs very rarely compensate the agency fairly for the work, and because of that they are even more unfair." Ryan also admits he has heard of "horror stories" of marketers trying to get "something for nothing." Agencies are speaking up. The rule of thumb that Mojo Supermarket operates by, and posts prominently on its website: "We don’t work for free.” “Everyone assumes that we only do paid pitches, but it's actually the opposite,” Mo Said, founder of Mojo Supermarket said. “We never take money for a pitch. We only do unpaid pitches, because if you pay me $20,000 for a pitch and I'm giving you all these ideas, they're worth a lot more than that $20,000. I'm hoping that I will get your account and I will get to work on it, but we believe in our ideas so much that we never take a paid pitch. We usually turn that fee down just so we retain ownership of all concepts.” Said noted that protecting its ideas has led to some of Mojo's best work. One example is its 2020 effort to highlight the gender disparity at the Oscars, given that only one woman had ever won for best director amid five female nominations in the Awards’ 92-year history. In “Give Her A Break,” the agency hacked commercials in Oscar's online broadcast, replacing them with female-directed films. “The technology that we invented to hack the Oscars was a piece of an idea that we had pitched [to a client] before, and it didn't work and we were like, ‘Okay, we're going to develop this idea,'” said Said. Compensation vs. ownership While Said favors unpaid RFPs, he admits he would be willing to participate in a pitch if there is proper compensation. For Hill, proper compensation should always be around six figures. “I always ask clients— are you buying an agency or the work?” said Lindsey Slaby, founder of Sunday Dinner. “If you are buying the work, consider paying more for a pitch project. If someone wants to own the work in a pitch it becomes a project. You offer proper onboarding, more time, and pay something like $150,000 to $200,000 or more for the work to three shops. If you want to develop that work with the agency, they will often credit that into the future agreement. This is common and an option I express to clients.” However, compensation alone doesn’t entitle a brand to an agency’s work, Slaby added. “Even if a pitch agreement states that the agency will be paid $50,000 for their time, it does not mean the client owns the work or idea. It is a payment for the time for the process. Ownership of an idea can be negotiated separately to an agency that you do not award. The awarded agency will often agree that the pitch work converts ownership to the company upon signing the larger engagement," said Slaby. Typically, competitive pitches are unpaid with an assumption that the winning agency will get paid to produce the work, according to Catherine Benison, CEO of Select Resources International. In the not-too-distant past, compensation for losing agencies used to be a frequent occurrence. "This used to be 90% of the time for our reviews as recently as 10 years ago. Today it’s probably more like 20% of the time that the client will pay a stipend to the runners-up,” Benison told Ad Age over email. “This is usually not a huge amount of money, e.g. anywhere from $10,000 to $50,000 depending on the complexity of the ask and the size of the client’s budget. It is a stipend; importantly it does not entitle the client to own the IP or work. If they want to own any work that comes out of a review, they need to buy it. In all of the 25 years I have been doing reviews, I have only had this happen two times. In both cases they hired a different agency than the one that had come up with the idea they bought. Typically this work never gets produced. Sometimes there are aggressive clients who stipulate in their NDA that they will own any IP that comes out of the review process. This is clearly not consistent with 4A’s Rules of Engagement.” Protection for agencies Ultimately an agency’s ability to avoid a sticky situation comes down to “whether agencies have enough backbone and willingness to say no,” Hill said. In Starch’s case, Ball claims in his Instagram post that COVID-19’s impact on his agency made him feel the need to say yes to the opportunity. “We were fighting for our lives,” Ball stated. Another way for agencies to protect themselves is to have a clear and defined pitch agreement regardless if the pitch is paid or unpaid. “This then holds both teams accountable for ownership of the work,” Slaby said. “When many teams respond to the same brief, it’s amazing how often the ideas are similar or almost identical. Having an agreement in place covers this situation.” In August, the 4A’s released an agency review participation agreement with standards for an agency and potential client to agree on before a pitch process. While the organization had released guidance on this topic before, this marked the first time the trade association had issued an agreement meant to be accepted by both parties before a pitch. Buy your ticket for the Ad Age A-List & Creativity Awards Gala at AdAge.com/ACGala. Starch is looking to create its own document meant to protect agencies. "If we cannot get rid of the contingent RFP entirely, the No. 1 thing is to make sure the agency/creative individual maintains ownership and IP rights on anything ever created for an RFP,” Ball said. “At Starch, we are currently working on a contract document that will help do just that. We are creating it with the intention of distributing it to individuals and agencies of all sizes, with the hope that it will further help to protect everyone in our industry, without anyone having to pay for legal counsel." Ball also hopes his Instagram post will open the conversation on a larger scale. “This is the only industry where you would ask someone to provide you with their product upfront, completely custom-tailored to your needs with no guarantee of payment,” he said. “The ideas are the product. They are the IP that these individuals spend their entire careers perfecting.” He added: “A mechanic won’t fix half your car for free and then ask you if you want to pay them to do the rest.”

A small agency’s claim of 'stolen' work points to a larger industry issue

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