How ad agencies can safeguard their creative spark from being appropriated

In 2011, global giants Apple and Samsung battled it out, not just in business, but also in the court of law. This was after the former filed a lawsuit that Samsung had infringed on multiple patents of Apple iPhone and iPad product design, claiming the look and feel of its devices were replicated, including the user interface and icons. Apple won the lawsuit and was awarded over $1 billion in damages from Samsung.

The Apple versus Samsung case is not an isolated incident when it comes to copyright infringement. The debate around who’s idea sparked an innovation has been around forever—right from who came up with the theory of relativity to the real inventor of the telephone and the lightbulb.

In the advertising industry, creativity—whether in the form of patents, ideas or theories—is like currency, with the original owner constantly fearing that someone else might steal it. This fear is not unfounded, given the cases of copying, or ‘getting inspired’ by, someone’s idea that have emerged in the past.

In 2019, Indian production house Matheno Films reportedly sent a legal notice to Citibank India for "copying" its 2017 short film Cup of Tea. In the same year, Ogilvy dragged smartphone maker Vivo and its agency Dentsu to court after the smartphone company made a commercial, featuring actor Aamir Khan, similar to what the agency had proposed in a failed pitch. The leadership of Ogilvy and Chinese mobile brand later reached an 'amicable agreement' to end this plagiarism dispute in India.

Whose idea is it anyway?

The debate about creativity and the need to protect it was reignited when after the Jindal Steel’s 'Man of Steel' campaign bagged two Cannes Lions. Early Man Film and Kondurkar Studio were credited for this work, which got a silver and a bronze metal. However, Wieden + Kennedy objected, claiming that they had conceived the campaign idea and were neglected as the creative contributors in the credits.

Kondurkar Studio retorted that it was being unfairly targeted following press coverage of ongoing controversy surrounding the campaign's ideation. Campaign, along with other media, had written about the controversy, which was reportedly resolved amicably in May but resurfaced following the awards in Cannes win.

The issue dates back to March when ad agency Wieden + Kennedy took Jindal Steel to court, claiming they were the original creators of the ‘Steel of India’ campaign and should be recognised accordingly. Eventually the matter was settled out of court and copyright was transferred to Jindal.  However, the question of whether some credit should be given to Wieden + Kennedy remained a sore spot, as it was not listed in the entry credits at Cannes.

Pruning the risk

Creative ingenuity can be purloined from any agency, their size notwithstanding. Bigger and established agencies are better cushioned against such instances as they usually have well-defined processes in place to protect their creative rights.

Smaller and independent agencies are considered to be more vulnerable to intellectual property rights (IPR) thefts. The reason is that they sometimes skirt around crucial steps to safeguard these creative assets in their bid to bag big clients and make a name for themselves. At times, they also want to get a leg up over the competition by showcasing a lengthier clientele.  

To avoid landing in unfavourable situations, legal experts that Campaign spoke with suggest that agencies should create a list of procedures to follow and then adhere to them diligently. In fact, they recommended that they should stick to them even when working with known clients

Some processes that should become a force of habit is avoiding sharing ideas over informal platforms like WhatsApp. Email is a better communication platform instead, especially with a confidentiality clause attached, as it creates a paper or digital trail. Following this due diligence for every pitch that they share can go a long way in building the requisite guardrails for protecting an agency’s ideas.

Aarushi Jain, partner at Cyril Amarchand Mangaldas recommended, “Signing a confidentiality or non-disclosure agreement is a must-have while disclosing ideas.” However, she conceded that this could lead to practical challenges as small or mid-size marketing agencies may not always have their way with documentation.

Aarushi Jain, partner, Cyril Amarchand Mangaldas.

In such cases, small steps like adding confidentiality notice or watermarks on can be added to drafts or presentations. Similarly, she suggested placing confidentiality notice in emails on the lines that the information within is confidential and cannot be shared or used without permissions. “Another way could be video recording pitches, where possible, or documenting that a pitch was made.  Such measures result in creating documentary evidence sans agreement and are very helpful in dispute situations,” Jain added.

Look before you leap

Remember the old adage about being safe than being sorry. Well, when it comes to protecting IPR, it could well be the thumb rule that ad agencies follow.

Advocate Namitabh Kothari, proprietor of NRK Legal, advised that if a client approaches an agency, it is prudent to check their background and credentials. This way they can find out if they have any past or pending litigation concerning their past advertising agreements, including any out-of-court settlement.

“Creative agencies should always keep their legal team informed about the new clients so that they are ready to take urgent and immediate steps and actions on the sudden termination of the signed service and confidentiality agreement,” Kothari added. “It is important to organise all the emails, chats, and communications, along with the audio-video recording of the meetings and keep them ready in case of sudden termination of the agreement by the client.”

Following these steps can ensure that agencies avoid painting themselves into a corner when it comes to shielding their IPR. This will minimise the problem of idea theft and ensure that all business dealings are kosher.

Namitabh Kothari, proprietor of NRK Legal

Here are some suggestions from legal eagles for agencies to protect their creative ideas:

• Every work project should be started only after proper documentation, even if it is for a well-known client.
• Avoid rushing through things out of fear of losing business or big clients.
• Have short intervals in payment schedules after starting work to avoid accumulating dues.
• Take copyright registration and other legal precautions very seriously and educate your team about it as well.
• Set aside a budget to undertake legal actions, whenever needed.
• Choose the place of arbitration best suited for your business to save time, expenses and costs.
• Leverage social media to inform the public and the industry in case of unfair termination of the contract, non-payment by the client, litigation and updates on lawsuits.