Why Didn't We Think of That?
Handling Unsolicited Ideas

by Jon Lee Andersen

Advertising agencies and advertisers face a rocky landscape when evaluating how to handle unsolicited ideas. Weighing the risks against the rewards can be a slippery task. There are really two best practices for agencies and advertisers and some recommendations for those who might wish to submit ideas.

Some agencies, especially those that have excellent creative departments, simply refuse to accept or evaluate unsolicited ideas. If an agency adopts this position, the best practice is to have someone unconnected with the creative process copy the contents of any solicitation and return the material with a well drafted form letter explaining the agency's position. The letter should specifically note that the idea will not be considered by the agency.

In the second scenario the agency will entertain unsolicited ideas, but only according to a strict arrangement agreed upon in writing. Again, a non-creative person contacts the submitter and informs him or her of the agency's policy and provides a copy of the standard form agreement. This agreement addresses a multitude of issues including similar or identical material or ideas, originality of the idea, other agreements, publicity, compensation and other matters. If the submitter signs and returns the agreement, then the material is released within the agency. If it is not signed and returned, the material is returned to the submitter with a letter noting that it has not been considered.

Turning to the other side, how can someone submitting an idea protect himself or herself. While the area will always probably remain somewhat murky, here are some considerations:

If there are legal tools available, use them. Even though ideas cannot be protected by copyright, frequently written examples of the idea, character, game or other plan can be covered by copyright protection. When presented, the copyright notice placed on submitted materials can be very helpful in establishing ownership in subsequent disputes.

Confidentiality Agreements can also be very useful in protecting ownership claims in idea submissions. The key ingredient in developing a good Confidentiality Agreement is the definition of what must be kept confidential. A party submitting an idea will normally want as broad a definition as possible, whereas, a receiver of the information will want a more narrow definition. Also key, particularly for the receiver, are the exceptions customarily found in such agreements, such as information or ideas developed independently by a company's own employees, consultants or agencies without reference to the confidential information or idea, and information which is already publicly known.

Take good notes at meetings where ideas are presented. Record the date, time and place of the meeting, the people present and certainly the idea presented. Note what each party agrees to do, if anything, with the idea. While ink fades over time, it last longer than most human memories. Meeting notes, produced in conflict resolution situations (think lawsuits) are very helpful in establishing a party's position with respect to a great many issues.

Fundamentally the keys to the idea submission minefield for those companies that regularly receive such information is to: (a) have a policy in place defining how these situations will be handled, (b) have the documents covering the policy available and (c) understand clearly the ownership status of the submitting party. For a submitter the keys are to protect the idea in as many ways as possible using copyright, Confidentially Agreements and meeting notes as evidence of ownership and a record of disclosure and agreements. Summarizing:

Before an idea is shared

‘Tis best if both sides are prepared

To adopt a solution

For avoiding confusion