Ad industry aims to protect ideas while courting clients

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Every time ad executive Michael Brunner sees a particular national ad on TV, he is struck by how much it looks like an idea his staff shared with that company last year. The company is no longer a client."They say they were thinking of something similar to it," said the head of Brunner advertising. He may have his doubts but he conceded, "We can't prove that."In advertising, sharing ideas can be risky. Everyone in the business has stories about how a proposal -- either one made in a new business pitch or discussed during the course of a project -- seemed to end up incorporated into marketing done by a client that got away.Just last summer, the Leo Burnett agency was the subject of a National Public Radio story about whether its ideas for promoting "The Simpsons Movie" were filched. Bloggers on advertising sites argued fiercely over whether that was true or rather the ideas would have come up with naturally with any smart marketer.A certain amount of idea creep may be inevitable in any industry. But the American Association of Advertising Agencies has felt the need in recent years to take a stand on the issue.The trade group last year approved a position paper calling for agencies and clients to agree on ownership issues before opening up their Power Points. A few months later, the group followed up with standard suggested contracts meant to help agencies protect themselves and their industry from excessive fishing by prospective clients."We think the new business process has gotten too one-sided," said Tom Finneran, executive vice president of the New York-based trade group. It advocates that agencies trade queries with clients before either one devotes a lot of resources to working with the other.Getting things out in the open could help a client with a $20,000 budget avoid being shocked by a pitch calling for a $100,000 investment in marketing. Conversely, an agency could avoid investing thousands of dollars in developing a pitch that never would go anywhere.Why take a stand now? Finneran cited cases in which clients asked agencies trying to win their business to sign over ownership of any suggested ideas and, in a few instances, even cover the advertiser legally if it used ideas from an agency it hadn't hired.It's easy to find proof that the right idea has value. Note the carefully guarded recipes for Coca-Cola and Kentucky Fried Chicken, the sales stomp of Crocs shoes or the rise of YouTube.com.An idea's birthplace is often harder to pin down. The guy who gets to the patent office first gets credit. But someone else may tweak that idea into something new. Musicians sample pieces of older tunes, clothing chains are sued for imitation and tech firms challenge a rival's product that seems a bit too close for comfort.Is it theft? Innovation? Flattery? Coincidence?Idea ownership may not have been a major discussion point in the days when an advertiser maintained a long-term monogamous relationship with an agency. Pay involved collecting a percentage of the marketing budget.Encounters are often more short term now. The explosion of new media options has accelerated a trend toward using different shops to split chores, such as media buying, Internet advertising and TV campaigns. Agencies and clients change partners more frequently. Payment may involve a fee for a project.Generally, once an agency is hired and a contract agreed upon, the work belongs to the client.But Brunner noted a photographer might negotiate the rights to use a piece in certain venues and not others. Using a photo on the Web, in addition to a newspaper ad, might require negotiating another contract use."Why is it the advertising industry hasn't done the same thing?" he asked, noting that some ideas have morphed into money-making ventures outside of traditional marketing. The Geico cavemen had their own TV show before returning to ad work. Staples has sold a lot of Easy buttons.The subject likely will be debated as the industry experiments with different formats and clients test out new forms of advertising.Meanwhile, the ad association aims to persuade agencies -- even those willing to compromise to get a foot in a client's door -- not to give away the store and hurt the entire industry."What's inexcusable is agencies not to stand up for their rights," Finneran said. While conveying that message may be tough in a slow economy -- when marketing budgets are being watched closely -- he doesn't see a real choice. "If you take a victim's mentality, you will become a victim."Relationships will always have some nuance, said Brunner. It doesn't take long to figure out when an agency or a client can be trusted and a freer flow of ideas let loose.(E-mail Teresa F. Lindeman at tlindeman(at)post-gazette.com.)(Distributed by Scripps Howard News Service, www.scrippsnews.com.)