A few weeks ago, we had an anonymous senior adman pen a much discussed column about idea theft. It’s this convenient thing clients do as agencies present their most `groundbreaking’ work. They adopt (read: steal) ideas that catch their fancy without so much as a by your leave. Some other agency gets to work on the campaign and soon Agency No 1 is staring at a YouTube video, now gone viral, that keeps clocking like after like. Leaving its staffers seething in impotent rage and the desire to scrawl `Hey, this was my idea’ in the comments thread. If this sounds distressingly familiar, look no further than the mirror while trying to find people to blame.
First, agencies don’t do their homework. All clients aren’t cut from the same righteous cloth. There are Bermuda Triangles of the marketing world, who have a reputation for idea shopping.It was something a large Indian conglomerate was frequently accused off especially given its close ties with a particular agency.But typically, such clients opt for whoever quotes the lowest. And yet, pitch after pitch, ad shops go in all guns blazing, their finest creative minds working overtime, effectively delivering their best ideas free of charge. Mostly, the idea gets mutated by the time it comes to fruition so the original agency often finds its ownership hard to prove.
To quote a few instances, the preorder strategy, a digital queue for the launch of a fast food chain in India was supposedly presented by an agency that didn’t get the account. A knit-wear brand is notorious for idea shopping. A creative head remembers writing a campaign for the Ministry of Tourism once. He didn’t win the account but one of his lines showed up in the final campaign. 8 out of 10 creative directors have been on the receiving end of this unabashed thievery of ideas.
On the other hand, there are the rare cases of magnanimous clients like VIP who compensated an agency for using a modified version of its brand name suggestion for a new line of women’s bags -Caprese.
Idea theft, like many advertising grievances, isn’t confined to India.Re m e m b e r t h e # S h a r e AC o k e campaign? A veteran adwallah told us that when the original idea (by O&M, Sydney) was adapted by another agency in a different market, the Australian network agency created a mini uproar and got compensated. Good for them if that’s what actually happened.
A n d wh at d o t h e i r I n d i a n counterparts do? Nothing. Actually, they discuss it grudgingly over a pint or few of beer. So, next to nothing would be more like it. The conversation brings about life-altering thoughts like -If the client can make us sign an NDA (non-disclosure agreement), why can’t we do the same?
Legally, they can. But with agencies shying away from asking for a meagre fee hike, the chances of them demanding an NDA are slim to none. With undercutting and declining margins, agencies are under so much pressure to achieve topline, they can’t afford to say no to any fresh stream of revenue or upset a marketer by bringing up the NDA. The last thing anyone wants is the reputation of being a difficult agency.
“The irony of it all is that despite being the biggest supplier of ideas, we have no command over our own product,“ laments Anil Nair, CEO and managing partner of L&K Saatchi & Saatchi. The client knows agencies are desperate for new business. If he is unscrupulous, he will take advantage of the situation. It’s a sign of a shortsighted client though, says Ajay Kakar, CMO, Aditya Birla Group financial services, to relinquish Lord Krishna for his army . We know how that panned out.Nonetheless, it’s the agency network that should boycott such clients.
So, why haven’t the doyens of this industry done anything to check these defaulters? “It’s because most of our senior leaders are on extension and they don’t give a damn about where this industry is headed,“ says Satbir Singh, managing partner and CCO of Havas Worldwide India. You have people who should’ve retired two years ago, getting paid a crore annually. Why would they risk anything? Rather why do they need to risk it for something that in most cases doesn’t even concern them?
Celebrated creatives are typically insulated from this phenomenon; it’s mainly the mid-level creative who often ends up feeling violated. Ideas are likely to build his career and the stuff histories are made of. The agency ecosystem needs to safeguard these or run the risk of losing talent to another industry (a fad plaguing advertising but that’s for another edition).
The AAAI (Advertising Agencies Association of India) says it’s working towards protecting ideas. While the call for a pitch fee went nowhere -rumour has it that agencies keen to pitch coughed up the fee themselves -in the last few years; they are looking to revisit pitch guidelines along with the ISA (Indian Society of Advertisers), shares MG Parameswaran, the association’s president and the advisor to FCB Ulka.The NDA clause will be a part of the revised guidelines, we’re told. So, when do we get this revised charter, we ask? In about three to four months, says Nagesh Alai, chairman of the legal wing. Until then, and maybe even after then, it’s open season on firstname.lastname@example.org
The Legalese Simplified
Ideas cannot be protected under any law pertaining to intellectual property rights (IPR) Copyrights protect expression of an idea. Patents protect inventions.
But, an agency can enter into an agreement with a client whereby he’d be bound to keep information given at the time of pitching confidential.
While industries like cinema, music, photography have strong unions safeguarding the creative folks’ rights, ideas are not protected under IPR anywhere. Only its embodiment in a tangible form can be protected.
The best way forward for a creative in any field is to be wise about their sales pitch.
If you’re a lyricist, share a stanza; a musician, share a tune; a scriptwriter, share a chapter.
And if you’re an adman, show your past work to the client or sign an NDA before showing speculative work.
If you are desperate, God save you.
(Inputs by Rahul Chaudhry, managing partner at Lall Lahiri & Salhotra, an Intellectual Property law firm)