Yours, Mine or Ours?
Ownership of Creative

by Jon Lee Andersen

Since this edition of Oz is focused on winning creative and the creative element of advertising, its time to discuss some of the issues and problems inherent in the ownership and protection of creative work. Using a typical pitch as a springboard, here are some of the ways in which the law and agreements affect the ownership of creative material.

Normally, after deciding to pitch an account, the creative side of an agency will learn all it can Ñ about the product or service involved and about the client, including what the client may be searching for (although in my experience agencies have a propensity to tell the client what it is they are searching for). Nevertheless, at this point ideas begin to take shape around the agency. Some of these ideas may find their way into the pitch, others will not.

So who owns these ideas, if anyone? The general rule is that ideas are not owned by anyone, particularly if they are not written, drawn, recorded, or put in a tangible form in some manner. Absent an agreement of some sort to the contrary, ideas are, as a colleague of mine put it, "as free as the wind and anyone can use them."

It is certainly true that, should the agency not win the pitch, it wants to be free to use the ideas (presented and not presented) for the benefit of other clients. It is also true that nothing makes an agency angrier than losing a pitch, and then shortly later seeing its ideas being used by the winning agency for the client.

Even when an agency wins the account, the questions continue with respect to future ideas. If the client chooses not to use a concept, can the agency use it with another client? What about situations where the agency is not paid for materials presented or delivered?

As usual, the best way to handle situations such as these is by working out an agreement in advance.

I have seen agreements where the client owns everything: ideas presented, whether used or not, even whether paid for or not. This may seem a bit ridiculous, but in the world of business, with its concomitant imbalance of economic power, it sometimes happens.

In the better agreements, the ownership provisions concentrate only on ideas reduced to a tangible form, i.e., as story boards, scripts, written campaign strategies, logo designs and such. Other ideas are generally not addressed and thus remain available to all. With respect to presentations, the usual provisions are for concepts and campaign materials used and paid for by the client to belong to the client. Concepts and ideas rejected remain the property of the agency, and can be used by the agency for other clients, although there are occasionally some limits as to the type of client for which they can be used.

In "spec creative" agreements, it is about the same. If the client is paying the agency for spec creative in a pitch, then materials presented in the pitch belong to the client. However, if it is pure "spec," then absent an agreement to the contrary, it remains the property of the agency. A good piece of advice here is for the agency to mark all "spec" creative with a copyright notice. This will significantly improve the agencyÕs position should the agency not get the account, and then see its creative materials show up later in the clientÕs advertising. Whether the agency decides to register the copyright is another matter, involving an analysis of two things: the requirement that it be registered before a copyright infringement suit can be brought, and the fact that registration makes the content a matter of public record, and thus strips it of its confidential nature.

The other area where the ownership of creative materials is frequently at issue is work done for an agency by outside vendors and freelance talent. Here we sometimes have a three-way tug of war involving the freelancer, the agency and its client.

Most freelance artists and vendors (especially photographers!) are pretty knowledgeable about ownership of their work. Their agreements generally provide that they retain copyright ownership and grant the agency a license to use the materials for a limited period of time. Agencies need to be certain that their contracts with their clients do not require them to deliver more in terms of ownership rights than they can reasonably expect to obtain.

Another area of frequent confusion in the vendor/agency ownership merry-go-round is that of masters or film stock. Production houses, photographers and other vendors frequently insist that they own the master or film. Absent an agreement that specifically says so, this is not true. While a photographer, supplier or production house may own the copyright to a filmÕs image, they do not own the film. The argument that the agency is only entitled to prints from the film is specious. The film belongs to the agency, even if it can make only limited use of the image it contains. In truth, the usual reason behind the claim is the photographerÕs or production houseÕs desire for leverage in the event of a payment dispute. Summed up another way:

Pity the poor agency involved in a pitch

Offering great new ideas to make clients switch

Then oh the disgrace

To end "second place"