10/04/2011 11:57 am ET | Updated Dec 04, 2011

A Principle Isn't a Principle Until it Costs You Something

There has been a lot of discussion surrounding who owns Agency ideas presented in a pitch... the prospective Client, or the Agency? There are legitimate concerns and positions taken on both sides. However, as an industry, we aren't doing ourselves any favors by not recognizing and abiding by a single industry position on the matter. Prospective Clients want to protect themselves from litigation for ideas that they may use in the future that may bear a remote similarity to a concept presented by an Agency in a pitch. Agencies, on the other hand, don't want to participate in, and ultimately lose, a pitch only to find their ideas being used in the prospective Client's marketing somewhere down the road.

If you were to take a poll of the industry, I'm certain that there would be universal agreement that Agencies should retain the rights to their work product presented in a pitch situation. So as a matter of principle, we can quickly band together around this issue. However, if a Request for Proposal was issued tomorrow for which the Agency is required to give up ownership of its work product in order to participate, many of the same Agencies would jump in, abandoning their principles due to economic necessity. Our founder, Bill Bernbach is famous for saying "A principle isn't a principle until it costs you something." That is certainly true here. As an industry whose primary work product is our creative ideas, we won't get the business community to recognize the true value of our services by giving away our work product to just get hired.

That is particularly true when Agencies' compensation is no longer a commission tied to the spending behind an idea, but rather some form of measurement of time and effort expended to arrive at an idea (a rather silly concept, but not what this blog is about). In most cases where the Client seeks to retain ownership of the submissions for a pitch, we have also found that they also seek protection from the Agency with respect to the Agency's ownership of the idea. Meaning that an unwitting Agency who signs an unfavorable Nondisclosure Agreement may not only be giving away its ideas in a pitch, but might also be responsible for any claims from third parties about its rights to use the ideas... even if they aren't the Agency selected!

The AAAA's has provided clear guidance for Agencies that ownership of work materials should not be given up as the right of entry to a pitch. The ANA has agreed that this is not a Best Practice. Consultants and Clients have attempted to appease the AAAA's and Agency's by offering nominal sums to secure the ownership of ideas submitted in a pitch. But as an industry, are we willing to establish the "market value" of our ideas at $50,000 (or less) for a pitch, where we may present multiple options for campaigns?

One of my mentors once told me that the advertising industry sealed its own demise when they initially gave up ownership of their creative ideas to Clients. While I'm not sure that there was ever an alternative, I do know that we are selling ourselves short and cheapening our product by giving away our work in a pitch. Potential Clients should have to worry about seeing a rejected ad campaign used by a competitor... it might make them more thoughtful about the work they see in a pitch.

So during Advertising Week, let's agree as a collective industry that thrives on talent and creativity not to give away our work in a pitch and not even agree to sell for less than the effort we put into it. If we continue on the course we have followed, one of our Agencies might win the day, but in the long run, we all lose.