Shreyas Kulkarni & Venkata Susmita Biswas

Cannes Lions winning Jindal Steel's ad reignites the question of who owns the creative idea

W+K says it came up with the idea, while entrant Early Man Film has another agency named as the idea creator.

The spectre of ‘Who owns an idea?’ has reared its head again after Early Man Film and Kondurkar Studio won a Silver and Bronze Lion in the Film Craft category for Jindal Steel at the Cannes Lions International Festival of Creativity.

Earlier this year, ad agency Wieden+Kennedy (W+K) took Jindal Steel to court over an intellectual property dispute over the Cannes Lions-winning ad film Jindal Steel’s The Steel of India that came out in March 2024.

In its petition to the Delhi High Court, W+K sought to be recognised as the original creator and copyright owner of the video. The advertising agency pointed out similarities between the imagery it had recommended and the final film that was carried out by Early Man Film and Kondurkar Studio.

In its judgement, the Court found that the montage of sequential images and videos stitched together and some designs provided by the advertising agency were used by Jindal Steel.

“Delhi High Court verdict, clearly stated that prima facie the campaign was substantially similar to what we had presented to Jindal Steel, be it the theme, imagery or the sound design. The matter was subsequently settled out of the court to the mutual satisfaction of both the parties,” said Wieden+Kennedy India in a statement. 

The case was settled out of court with W+K transferring the copyright to Jindal Steel. The steel manufacturing company compensated the advertising agency for the transfer of copyright. The case was subsequently dismissed.

Cannes Lions winning Jindal Steel's ad reignites the question of who owns the creative idea

Early Man Film and Kondurkar Studio are credited as the entrant and idea creator of this campaign at the Cannes Lions International Festival of Creativity. However, the question of who should receive the credit of ‘idea creator’ is now being asked. 

Is it W+K that first came up with the idea or is it Jindal Steel because it now holds the copyright and can choose to not mention W+K at all? 

“It is but natural that when a breakthrough piece of work appears, there would be many claimants for the credit. It’s an issue for agencies, clients and lawyers to iron out. As far as we are concerned, there is no controversy," said Early Man Film in a statement.

"The film was shortlisted for direction and editing in Film Craft. We have provided the required paperwork to satisfy the rigid scrutiny of the Cannes Lions authorities. The film was judged on merit by the jury. So, that’s that."

The curious case of the original author 

Copyright transfer may seem an incredibly hard subject to get one’s head around, but Medha Banta, media and entertainment lawyer at Khurana & Khurana, Advocates and IP Attorneys explains to us the crux of the matter. 

She says that when a copyright for a piece of work is transferred from one entity to another, the "original author" still remains the same. “If someone claims to be the "original author" or claims to be the creator of an idea when the IP was in fact transferred to them, then such claims may be false and misleading.” 

Banta further explains that two types of rights are vested in a copyright: moral rights and economic rights. 

Similarities. (Left is W+K, right is the final idea)
Similarities. (Left is W+K, right is the final idea)

The economic rights give the owner of the copyright the right to duplicate, reproduce, create a derivative adaptation, translation, monetisation, etc. Therefore, economic rights are enforceable owing to their monetary nature. 

However, the moral rights that comprise the right to be acknowledged for the work created and the right against distortion aren't so. This being said, the moral rights that vest in a piece of work should not be violated even if the copyright for the work is owned by a party who did not originally create the work or idea. 

The battle over idea ownership is not new 

Seeing an advertising agency and a client tussle over ownership of creative work or ideas is as old as advertising itself. 

Preceding W+K was the independent ad agency Bang In The Middle that, in April 2024, revealed it had initiated legal action against its former client Medanta, a healthcare provider, for using a campaign idea it had rejected when it availed of the services of the agency.

“The agency hands over the work to the client and after that it (the agency) has no claim on that work. Okay, but if the work is rejected, not bought by the client, there is no reason for the client to say that this work is mine,” comments Naresh Gupta, co-founder and managing partner, Bang In The Middle. 

In 2022, Amer Jaleel, Group chairperson and CCO, MullenLowe Lintas Group, called out financial services company Motilal Oswal for its in-house ad that was similar to an ad the agency made for the company when the two worked together. 

Jaleel, now the founder of Curatavity, looks at this issue through the lens of labour and ideas. He believes that when a brand engages somebody to do work, it is engaging labour, and sometimes “the labour’s efforts produce is spectacular, it is beyond what the client has paid the agency or creator.”

And, “if the client is taking that idea or piece or campaign forward and extracting more value out of it than what it had commissioned, there has to be some compensation."

The agency model comes under question 

It is no secret that advertising agencies are surviving, not thriving, and facing terribly low margins. A recent guest piece from independent creative agency Talented’s co-founder and CEO Gautam Reghunath bemoaned how precarious the state of agencies is once cost negotiation meetings are complete after they win a client’s mandate. 

“By the time it’s all done, agencies are precariously placed, with profit margins hinging on their staff consistently being able to pull off 1.5x, 1.7x, and 2x more work than what they’re actually capable of,” wrote Reghunath. 

(L-R) Naresh Gupta, Azazul Haque, Amer Jaleel
(L-R) Naresh Gupta, Azazul Haque, Amer Jaleel

Now, what do such meetings have to do with ownership of the creative idea? A lot. Because there is cut-throat competition among agencies for survival, forget profits, they’re more than likely to turn a blind eye to such points during contract negotiations than go through them with a magnifying glass. 

“Sometimes they even overlook,” remarks Azazul Haque, group chief creative officer, Creativeland Asia. “They think that discussing such clauses might end up losing a client. That fear is the biggest reason for such things happening.”

An industry-affecting solution is the need of the hour for this issue because it inadvertently makes rivals and enemies out of otherwise friendly agencies. 

“When an agency sees an idea it has created, taken by the client and given to another agency, it is seeing its idea and its revenue stream both go. It’s not a good feeling and also turns the two agencies into unwilling rivals,” he states. 

So, how does one safeguard the interests of the idea’s creator? The answer should lie with the “doyens in the marketing and advertising industry,” feels the founder of Curativity. 

If they come together, he says, and “develop best practices- maybe not legally enforceable – that everyone would love to follow; it’ll help build a conducive and genial atmosphere in the industry.”

Basics done right 

If one has watched Ekta Kapoor’s television shows in the early 2000s, they’d know 15-20 episodes of trauma and fights would happen over a simple misunderstanding or the lack of clear communication. 

Adland’s issues can fall in the same category if viewed from Haque’s point of view. “... at the inception of a relationship, at the very genesis of a relationship, if both the parties are very clear about how much of a copyright an agency has over an idea, and how much the brand owns of it... I think these things have to be documented legally.” 

He believes it is necessary to draw up a legal contract that contains all the nitty gritty because “then the brand knows that these things are something that will become serious, whenever such disputes still arise.”

A united front?

One would imagine such issues bring the advertising industry together to ensure such incidents do not happen again. Gupta is not holding any hope. “That will never happen. Too many vested interests here and there,” he states. 

Haque echoed the same when he remarked that this industry is not together. “They (agencies) are out to kill each other. They want to snatch each other's business,” states the Creativeland Asia CCO, and further says that these agency-client tussels are sadly “lonely battles.” 

Jaleel is firm that industry-level bodies like ASCI or AAAI should take up the new guidelines and they “must make the guilty party stand out so that nobody repeats it.”

These are poignant observations for a fraternity from its ilk that is staring at a weak Cannes Lions performance, and where the tussle between W+K and Jindal Steel has caught more attention than the awarded works. 

afaqs! reached out to Cannes Lions and Jindal Steel but did not receive any response until the time of this article's publication.

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