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The great advertising swindle

The great advertising swindle Jodi Harris

It has been said that imitation is the sincerest form of flattery. But in the advertising game, there is often a fine line between imitating an idea and downright stealing it.

Agencies and creative teams face a unique dilemma throughout the business development/RFP process: they are charged with the task of putting their best foot forward prospectively, generating and presenting big ideas and execution strategies to a potential client, before they have actually been hired to do the work.

For example, when 20th Century Fox's "The Simpsons Movie" was being promoted this past summer, one of the most buzzed-about marketing tactics for the film was the temporary transformation of select 7-Eleven convenience stores into Kwik-E-Marts. FreshWorks, the ad agency for 7-Eleven, made the partnership happen, but was the agency the first to come up with the idea? Ad agency Leo Burnett says no, claiming that the idea was part of a pitch it had made to 20th Century Fox in 2006. After the 7-Eleven promotion was announced, Leo Burnett went public with its claims of idea theft, resulting in professional and consumer responses that ranged from sympathy to cries of sour grapes.

Even more recently, Sony debuted the latest in a series of innovative spots to promote the sharp, high-resolution picture of its Bravia line of HD televisions. The campaign, Sony Bravia Bunnies, conveyed its message with colorful clay bunnies running amok in an urban landscape. But did the spot's producers, Passion Pictures, crib the creative idea from a panoramic by Los Angeles-based artists Kozyndan?

Kozyndan claims that it provided samples of its work to Passion two years before Fallon (Sony's ad agency) hired the production company to create the latest Bravia spot. The similarities are striking. But was this truly a matter of sneaky appropriation or innocent inspiration? Furthermore, did Kozyndan and Leo Burnett do the right thing by taking their gripes to the people? Or should they have sucked it up, chalking the experiences down to a lesson in the pitfalls of the RFP and the necessities of building industry relationships?

The standard proposal process is far from the ideal -- for agencies and clients alike -- and from time to time, you may have the best ideas, but you may not get the job. Every agency can likely tell its own big fish tale about the one that got away. But can these traps be prepared for, or even avoided altogether? Here is what some of our experts learned from their time in the RFP trenches, and some tips to help you stay out of the creative foxhole.

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The agency says...
Hollywood rewards copycats. So does Madison Avenue. As children, we are taught not to copy other people's work, but as adults, we are encouraged to DO EXACTLY WHAT THE OTHER PEOPLE DID TO MAKE MONEY. Call it free enterprise if you will, but how else can we justify Pepsi after Coca Cola, "K-9" after "Turner and Hooch" and those stupid day-glo rubber bracelets with encouraging words printed on them that everybody cashed in on after Lance Armstrong made them fashionable?

Russell Scott is CEO and creative director at Jetset Studios. Read full bio.

So when you are an agency tasked with pitching on a project that may or may not be awarded to you, what happens to those wonderful ideas that you and your team brainstormed? Ideas, after all, are precious commodities. Each and every idea is special. There are no bad ideas, just bad people. And sometimes, when people don't have any ideas of their own, they just DO EXACTLY WHAT THE OTHER PEOPLE DID TO MAKE MONEY.

It is a story repeated over and over in every business in the world.

They stole my idea.

What can you do, and how can you stop it from happening?

The sad truth is, you can't. A good idea is just that: a good idea. An agency is selling not only the idea -- which sometimes is itself an amorphous moving target -- but also the interpretation of said idea and, ultimately, its execution.

While I don't have a solution, I do have an anecdote to share:

Back in the early days of online movie marketing, my company pitched on a project that we did not get, much to our surprise. We were convinced that we should have been awarded the project, as we have always enjoyed an extraordinarily high success rate of turning pitches into projects, and our egos just couldn't accept defeat. But, we finally let it go and turned our attention elsewhere.

A few months later, people from that same studio called us with an unusual request. They wanted us to do a special feature for the film website that they had awarded to someone else. Intrigued, we accepted the job. They explained to us that they had conceived of a fully fleshed-out idea, and they just wanted us to execute it.

When we arrived for the meeting, we were pitched -- verbatim -- a very prominent feature from our original proposal: the proposal that they didn't want. 

So now, they wanted us to execute their "exciting and original new feature concept," which was really our old, mothballed, unwanted feature concept that had been exiled to the sad and lonely island of misfit ideas.

Bottom line: People will do seemingly anything it takes to DO EXACTLY WHAT THE OTHER PEOPLE DID TO MAKE MONEY.

There is no combative cure. Our business is built on relationships, mutual respect and quality of work. The key, of course, is to have a surplus inventory of ideas and the ability to create new ideas out of thin air on the spot, anytime, anywhere.

Because, as a creative agency, that is our job.

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The client side says...
You cannot protect IP during the pitch process. Period. Get over it. Your agency gets the RFP, decides to pitch and believes it has come up with that one thing the client has never thought of. I spent 10 years as a creative and still even I am amazed at the paranoid delusions on the agency side of the client "stealing" their idea. Do you really think you are so creative that it trumps years of experience with the brand on the client side? That your three weeks with the brand, two all-nighters and one strategy session will have provided you with that nirvanic moment of Zen that allows you to see the client's brand so clearly? Wow, you really are drinking the delusional Kool-Aid of advertising: your own.

Sean X Cummings is director of marketing for Ask.com. Read full bio.

I understand. I was convinced that several clients had stolen RFP pitch work after I had seen almost identical executions months later, but that was before I spent the last half decade client-side.

The client stealing your idea is about as likely as you sleeping with someone not in the ad business. I just sat through a pitch with five agencies. Many ideas were similar, and two were almost identical. In fact, if we execute that idea, I guarantee you one agency will be convinced that we stole it from them. Why does so much work look the same in the pitch? The "brief." You are all ideating off the same document. Where you end up is often quite similar.

Don't worry; it is not the ideas that are brilliant, it is the execution of those ideas that bring brilliance into reality. Without that, without you, without your understanding of all of the subtle nuances of the campaign you just presented, even if the client does take aspects of the idea, it will probably be the worse for it. It's in the execution that the value lies. It is in your people.

Agencies don't always fully appreciate what business they are in. If their "ideas" are so valuable then why do they bill clients by the hour instead of by the idea? "Time" is your compensation model, so stop acting like it's your ideas that we are paying for. In the pitch, you're doing volunteer work.

Look, it's your choice; you do not have to participate in the pitch. You really don't. And if your ideas are what you value, then charge for them, and reward your people based on that model. Otherwise, shut up already with your they stole my idea.

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Cover off on the basics
Agencies are struggling with a tough question of how to best protect their intellectual property during RFPs. That's because over the past few years companies have really tightened up their RFPs, including clauses that legally entitle them to the responses. Here's a typical clause from a Fortune 500 RFP: "All responses and materials submitted in response to this RFP shall become the sole property of the company issuing the RFP."

Susan C. MacDermid is SVP of Real Branding. Read full bio.

To participate in large RFPs, agencies have to agree that ownership transfers from them to the companies issuing the RFPs. Companies insist on this clause, and even the largest global agencies reluctantly agree to it. We understand these companies are not trying to steal our intellectual property, but instead are directed by their lawyers to include the clause, as it protects them from possible future legal claims to campaigns, ideas and concepts.

As a veteran of many, many, many RFPs, my recommendation is to cover off on the basics.

  • First, document to the person managing the RFP that 1) your agency is uncomfortable with the ownership clause, 2) that your understanding of the clause is to solely protect the company from future litigation and 3) your expectation is that the company will not under any circumstances use any of your IP without written agreement and appropriate compensation.

  • Second, copyright all the materials you are delivering/presenting.

  • Third, deliver summarized written/or presentation responses and verbalize much of your IP so it is more in your control.

And here's a final word of advice. Keep in mind that the suits at the Fortune 500 are reasonable, fair business people. A few years ago, we won a RFP issued by a highly prestigious Fortune 100 company from the global AOR incumbent. The incumbent AOR, embarrassed, appealed the decision at the Board level and offered to provide the services gratis. The Board agreed. Ouch!!!

While this happens, the game's not over. Make your case to the individual running the RFP. In this instance, given that the client wanted to use our IP, it agreed to pay the full cost of completing the assignment and also chose us as AOR for another brand. Bravo!! That's fair play in action.

It's your IP: Don't give it up without a fight.


Survival of the fittest
Here are two better known secrets in advertising:

  1. There's no such thing as loyalty

  2. Ideas are near impossible to protect or charge for

Eric Druckenmiller is media director of Deep Focus. Read full bio.

Today more than ever, agencies -- especially small- to mid-sized digital shops [full disclosure: I work at one] -- are challenged with confronting these secrets and establishing better practices for maintaining loyalty and protecting ideas during the pitch process and beyond.

But why is this so tough to accomplish?

For one, we've never before witnessed the democratization of idea flow at this scale and speed. The web has connected professionals worldwide with a limitless bounty of fresh thinking and innovation. Hundreds, if not thousands, of very bright individuals are monitoring the marketing landscape every day and evangelizing the best of the best (and themselves). Seneca, a Roman philosopher, may have nailed the problem/beauty of the web: "The best ideas are common property."

Another factor is the capacity of ways to market in the digital space, which has shattered the parameters of the traditional canvas (and put up for grabs enough marketing dollars to support brand new businesses). Imagination, media-agnostic strategy, creativity, multi-disciplinary collaboration and technology acumen win here, not formulaic push tactics that fill 30-second spots or a printed page. This translates into significantly reduced barriers of entry for agencies or services able to fill that digital marketing void, making for a more competitive landscape.

The third intensifier is the prevailing uneasiness on behalf of marketers (and the old guard from traditional agencies) to truly embrace a new paradigm in marketing being shaped by an on-demand and participatory digital world. This is especially true in a climate where young digital agencies are clamoring to establish legitimacy and approval, and working to disassociate from past blunders (the bubble burst) and modern day snake oil hucksters. The burden of proof is squarely on these agencies, making it challenging to ask for much more than a chance to demonstrate credibility. 

In this environment, Darwinian logic rules. Not so much handshakes and martini lunches, but by sticking to a DNA that will survive and adapt, agencies can maintain the prospect of loyalty and intellectual ownership. 

Here are a few of our best practices for doing so:

  1. Execute. A great idea is only as good as its execution. Too often, our imagination outpaces the possible and disappoints in implementation. Don't pitch ideas that can't be executed, and know your limits. Reputations can be won or lost in execution. Further, if you can prove that no one can execute your ideas like you can, there is less risk those ideas will be stolen.

  2. Be transparent. Digital is still the Wild West, and when anything goes, transparency can often be put aside for survival and land grabbing. Agencies that remain transparent and honest will establish longer term legitimacy and ensure business relationships that are mutually beneficial. This doesn't mean giving ideas away for free; it is about establishing a base of dependability by being open and honest about what is being done for a client, and how much that is going to cost it.

  3. Consistency. Setting standards of excellence can be a lost art when scrambling to finish a dozen proposals in a week. Suddenly, throwing a bunch of darts at once and hoping a couple land isn't all that irrational. But agencies that are able to prioritize, be selective and throw the darts with precision will establish consistency in product that will build a reputation; something that is far more sustainable in the long term than quick wins.   

This is by no means exhaustive, and in the end a company's DNA is a function of its people. But in an environment where the best ideas will and should win -- no matter their origin -- agencies need to know what they're made of and know if it's working. This actually makes me very optimistic. By agencies focusing on a winning DNA, competition will only make us all better at what we do, and the strongest indeed will survive. 

Jodi Harris is managing editor at iMedia Connection. Read full bio.

Jodi Harris is the Director of Editorial Content & Curation at Content Marketing Institute. As an independent consultant, Jodi develops strategic content programs and projects for brand, media, and agency clients in the marketing, entertainment,...

View full biography


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