An incumbent agency on an automobile account claims that its strategic idea presented in a pitch process early this year, was unceremoniously 'stolen' and executed by the new agency. This is not a sole example. There are other agencies which claim that they, too, have been cheated at some point.
Bharat Patel, chairman, ISA, says, "Stealing ideas and concepts from one agency and selecting another agency to do the job is unethical. If the AAAI brings this issue to us, we'll surely look into it."
Patel recommends that agencies should have more self-discipline and simply refuse to pitch for brands that are notorious for calling for pitches all too frequently.
If a client breaches this agreement then who will take him to task? "The concerned agency can just go legal," Alai answers. According to him, agencies ought to be more unified and refuse to pitch if clients refuse to sign such agreements.
Copyright on ideas?
Many agency heads are of the opinion that a copyright on an agency's ideas -- as it is practiced in several other countries - could be a solution to this problem.
Anil Nair, chief executive officer and managing partner, Law & Kenneth, says, "There absolutely must be a copyright at the pitch level. Most often, the baseline is what gets stolen in creative pitches."
Like Nair, many feel that there should be a pre-emptive arrangement in the form of a signed document which states that whatever is being presented and is still not bought belongs to the agency and cannot be used without the consent of the agency.
Clients often make agencies sign NDAs (non-disclosure agreements) when the brief is shared. The general sense is that a similar non-disclosure or non-usage agreement, that agencies could ask clients to sign before presenting their ideas, will be a potential deterrent for such unethical behaviour.
A common complaint is that India is the only country where suggestions and recommendations come free of cost, under the pretext of 'pitching'.
Shiv Sethuraman, chief executive officer, TBWA India, who spent seven years working overseas, says, "In France, the minute a presentation is made to a prospective client, all the ideas are put on a CD and sent to the copyright bureau. In case of a dispute, you can re-visit that record and prove in a court of law that you had originally created a particular idea." No such mechanism exists in India.
Further, this issue is not one that plagues creative agencies alone; media agencies face this too. Unlike in the case of creative agencies, where it is the baseline or a particular aspect of the creative presentation that is most likely to get stolen, in the case of media agencies it is the strategy that is most likely to get picked up. The CEO of a leading media agency explains, "More than the media plan, it is the underlying strategy, approach and logic put forward by one media agency that is most likely to get stolen and executed by another agency."
In such a scenario, is charging a pitch fee the solution because doing so will partly compensate the agency, if it feels that its idea has been stolen or has been the source of inspiration?
"A pitch fee by its very nature is compensation for the time and effort put in by the agencies, not so much for their resources, ideas and intellect," says Anita Nayyar, director, customer strategy, BCCL.
The general sense is that an idea that comes from an agency is something a client can't put a price on unless the agency is officially appointed as the AoR.
In the opinion of Tarun Khanna, head, marketing, Fiat India, when the client's brief is a focused one, there is bound to be some overlap in the ideas that agencies come up with, and that within that common ground, the creative execution could be different. "Everything is derived from the client's strategy. The agencies aren't presenting a black book or a specific proprietary model; they're presenting creative thought processes based on a client's briefing. So I don't know if the issue of copyright is really relevant in this case," he says.
According to Abdul Khan, senior vice-president, marketing, Tata Teleservices, any formal agreement at the pitch stage will get stuck at the very definition of 'idea'. "While I understand how important intellectual property is for an agency, creativity is so subjective, that defining the contours of an idea is difficult. Already there are different interpretations, across eco-systems, of what constitutes an idea. The legal angle will make things even murkier."
Unless an entire ad done by one agency is released as another agency's work, other smaller disputes should be treated on a case by case basis, instead of codifying everything with the involvement of an industry body, feels Khan. "There should be one unified open forum where marketers and agencies can discuss these issues," he suggests.
While some talk about the intangible grey zone that a creative idea lies in, others voice practical concerns. "While a copyright mechanism may sound fine in theory, putting it into practice can get very cumbersome. Besides, just because a few clients are playing dirty, we can't insert regulations that will restrict the freedom of the ad industry at large," says Vikram Mehra, chief marketing officer, Tata Sky.
Legality versus morality
According to some, the issue is not of copyright laws as much as it is about moral values. "It has more to do with the morality of the theft and less to do with the legality of the theft," says Meenakshi Menon (Madhvani), founder and chairperson, Spatial Access.
If there is better unity among the players in the advertising industry and if agency professionals come together and decide not to use one another's ideas, then they can collectively solve the problem, she insists. "While legality may be difficult to implement, a sense of fairness and brotherhood is something agencies can work towards," advises Madhvani.