Can you really do anything when your pitch idea gets stolen?

In an image being circulated among advertisers sent to A+M by a reader, an unknown author calls for a change in the current pitches system where agencies are left vulnerable to the theft of their intellectual property rights. While A+M was unable to independently verify who the creator of the image was and where it originated from, the content of the image raises questions on pitch ethics and idea theft.

Within the ad industry, we are no strangers to the countless hours and sleepless nights poured in with the hopes of winning a client or an account. Neither are we dumbfounded when months later we see some of these works emerge publicly without credit to our ideas.

Idea theft, while maybe not as rampant as in the past, still exists.

In fact, just a year ago Khazanah-backed Cenergi SEA, a sustainable energy solutions company was shoved into the spotlight for an alleged idea theft after the founder of design company Dxclusive called out the company for copyright issues. The founder of the agency said that while the team bowed out following the procurement stage due to the price squeeze, not long after another vendor simply recreated their idea at the request of the client.

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After a pitch, who does the idea belong to?

The issue of executing ideas by agencies that did not win a creative pitch raises the question of intellectual ownership. Does an idea belong to the agency or the client after a pitch? Industry players A+M reached out to unanimously consider ideas to belong to an agency.

“Ideas that are proposed by agencies are our product and also the source of our profit. Similar to our client, they have products to sell which contributes to their profit, for agencies it’s our ideas,” said Gillian Yap, head of account management, The Chariot Agency. Yap said that the agency has unfortunately witnessed campaign executed which were very similar to what the team had proposed with an almost identical key visual design.

Agreeing with Yap is Khairudin Rahim, 4As CEO who said, an agency retains all rights, titles and interests in connection with the presentation concepts and materials regardless of whether the physical embodiment of the creative work is in an advertiser’s possession.

Advertisers must be aware that pitches are for the sole purpose of determining whether they wish to engage with an agency’s services and any advertiser who demands IP ownership of pitch work without paying Agency compensation is unethical, added Khairudin.

“4As members will and have collectively refrained from pitches that include clauses that ensure materials from a pitch become the sole property of advertisers,” he also said.

With agreements in place and support from the 4As, how commonplace is an encounter of pitch ideas being used without consent?

While Clarence Koh, CEO, Naga DDB Tribal, told A+M he has not professionally encountered such an instance, he added that it is not easy to spot and validate where an idea came from.

“It is also not uncommon that clients pick ideas from or get 'inspired' by a losing agency's proposal, and then tweak and revise them in some shape or form with the appointed agency,” he explained.

Can agencies safeguard their ideas from being used without consent?

Agencies are put in a tight spot to speak out against instances of idea theft as stated by the circulated article where it is better for an agency to do nothing lest they spoil their chances of being called for another pitch.

However, what agencies can do to minimise idea theft, is to ensure they have email records of proposals shared with clients and also to include copyright disclaimers in proposals, added Yap.

Koh also said that he takes note of several considerations before deciding to participate in a pitch. These considerations include a clearly defined pitch and a client that actively engages the agency’s understanding of the brief, and also checking how many agencies are actually invited to the pitch.

Furthermore, both Koh and Khairudin emphasised that agencies should only participate in pitches where marketers comply to the 4As Pitch Disbursement By-Laws. This is where pitch materials carry a disclaimer that clearly states that the IP rights of the proposal remain the agency's property until it is 'bought' by the client.

“In our opinion, any advertiser who demands IP ownership of pitch work without paying agency compensation is unethical,” said Khairudin, adding:

“This is tantamount to a demand for free ideas/strategies. It contradicts core business principles and global norms of business dealings.”

He added that the 4As have and will continue to speak out on such “bad practice and value destroying behavior”. “The IP remains the agency’s property unless an agreement is reached on the appropriate compensation,” he said.

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