Protecting Your Intellectual Property

Most agency practitioners have been in business pitches they thought they aced, only to learn they came in second place — everyone who didn’t win comes in “second.” To add insult to injury, we’ve seen our best creative output “echoed” in the prospect’s promotional campaign.

It’s not only money lost and a source of professional and personal frustration, it’s also unethical to expropriate someone else’s ideas from a speculative presentation. It also can lead to serious legal and reputational complications.

Public relations professionals are not alone in facing this issue. The American Association of Advertising Agencies (4A’s) sent a letter last week to agency search consultants recommending that they stipulate in contracts that agencies’ intellectual property remains theirs until hired or paid. According to the 4A’s, intellectual property protection is a growing concern for advertising agencies.

The 4A’s letter reflects frustration about the all-too-common practice of request for proposal (RFP) issuers co-opting content, protected by small print in blanket confidentiality agreements. Primarily a business practice issue for each agency, the custom also raises a larger ethical debate about rights to intellectual property that extend to all consulting fields, including public relations.

Addressing the issue for public relations professionals, PRSA has issued a new professional standards advisory (PSA) —  PS-14, Expropriation of the Intellectual Property of Others — which clarifies how the practice conflicts with the PRSA Code of Ethics and cautions practitioners against expropriating intellectual property in new business pitches. In a larger sense, it means practitioners need to think carefully about the ethical implications involved in using an agency’s speculative ideas following new business presentations.

The PSA advises those who issue an RFP, as well as those who respond to it, that failure to protect intellectual property rights can cause conflicts with PRSA Code of Ethics provisions, including:

  • Promoting healthy and fair competition among professionals.
  • Serving the public interest by preserving and protecting intellectual property rights in the marketplace.
  •  Avoiding deceptive practices.

For professionals seeking to sustain ethical practice and protect intellectual property, the PSA also offers specific practice guidance. In short, it recommends creating an expectation up front of negotiating and resolving any questions about rights to creative content. This meeting of the minds establishes respect for intellectual property rights and clarifies the consultant-client relationship.

On a practical level, the PSA suggests approaches for locking in property rights. For those on the client side, the PSA suggests stating that “any ideas presented for consideration remain at all times the sole property of the proposing agency or consultant.” For those pitching business under an RFP, it recommends they “notify prospective clients in writing and verbally that [their] ideas are protected and may only be used after suitable and equitable arrangements have been agreed upon in writing and in advance.” The PSA also offers language, evoking copyright law, to append to each page of the RFP to make plain that the contents are proprietary and the exclusive property of the presenters.

Despite adequate protection, it often happens that creative ideas and recommendations by competing firms are similar, if not identical. These circumstances make the waters of intellectual property ownership and potential co-opting even murkier. Anticipating this scenario, the PSA suggests that up-front negotiations be defined by candor and specificity and that, following the presentaitons, a clear, healthy and candid conversation occur with agencies that did not win the assignment.

As you know, PSAs are issued periodically to help professionals navigate their way around new challenges to ethical public relations practice. PS-14 tackles an issue that threatens not only professional integrity, but also the bottom line. It’s an important issue we all need to confront, and PS-14 can keep us on a straight and narrow path to success.

About the author

Tom Eppes

Leave a Comment