Ethical Considerations: Protection of Intellectual Property in Client & Agency/Consultant Relationships
The professional relationship between clients and agencies/consultants often begins with the development of a request for proposals (RFP). Service providers are asked to present or submit everything from their experience and client work to ideas, strategies and campaigns. It is followed by an agreement or contract for services and associated work product.
The confidentiality and protection of these ideas is important to both parties, although most practitioners can cite situations where confidentiality was violated and ideas misappropriated. This happens either with potential clients or clients who have terminated contracts a short time after the documents were in effect. We also need to consider the ethics of the agency/consultant repurposing ideas from a proposal that did not result in a contract or agreement.
Recently, I moderated a discussion at the OKC PRSA Chapter meeting—a discussion about the ethics of protecting intellectual property (IP) in relationships between clients and communications agencies/consultants. Our panel included Debbie Anglin, APR, principal of Anglin Public Relations; Tim Berney, president of VI Marketing and Branding, and Doug Sorocco, director and shareholder at the Dunlap Codding law firm, all with locations in Oklahoma City.
Here are some key learnings for both clients and agencies/consultants:
- RFPs are sometimes written poorly.
- As clients, we need to make sure we do not ask for full strategies and campaigns and/or spec work in a proposal. We cannot expect public relations and marketing agencies/consultants to do the work without going through the processes of meeting with us and conducting research to develop strategies from which campaigns are produced. It’s like shooting an arrow with no target. As with any effort, we need to think through why we’re asking for the information in the RFP; and we need to have defined the process for rating the proposals to select a partner.
- One idea is to have an agency or consultant help you develop a strong RFP for bid. That agency or consultant would be ineligible to participate.
- As practitioners for hire, it’s important to explain to potential clients why we either are not answering an RFP or why we are not including specifics for strategies, campaigns, and creative.
- Intellectual property ownership/use needs to be clearly stated.
- Mark all proposals as confidential and copyright protected. As clients, we do not have the right to use the information/ideas until an agreement is signed between the parties, even if the RFP instructions state otherwise. This is true for government RFPs, also.
- When preparing an RFP with creative/ideas/strategies for clients, agencies and consultants should consider an online copyright filing that currently costs $35 which will position them for damages at a higher level should they need to pursue legal action for copyright infringement.
- Ownership and use of work product should be addressed in contracts or agreements so both parties acknowledge the arrangement with signatures.
- Also, we should be clear about ownership of work product and ideas/creative, should the agreement be terminated.
- The decision for agencies/consultants to pursue action for IP theft is difficult, because it could hurt future relationships with clients or potential clients. On the other hand, what does it say about the integrity of your agency/consultancy and your respect for your team’s work, if you don’t call a client’s hand for unethical and illegal behavior?
- It is a good idea to include in agreements IP protection language that calls for the process of confidential and binding arbitration. It’s wise to engage an attorney who practices in intellectual property to provide language requiring this non-public way to address IP issues.
- Non-disclosure agreements (NDA) or confidentiality agreements (CA) provide guide rails in contracted relationships.
- It may seem like a formality, but it’s important. Make sure an NDA or CA is signed by each party before sharing confidential information.
- It is ethical for agencies/consultants to repurpose ideas for other clients or potential clients.
- This is true if the intellectual property was part of an RFP that did not result in a contract or agreement, even if the RFP instructions stated otherwise. And again, this is true for government RFPs, also.
Like all relationships, the one between clients and public relations/marketing agencies and consultants needs to be based on trust. A great way to build that trust is to have both parties recognize IP ownership and use rights during the RFP process and in agreements, using language blessed by an attorney. It demonstrates the respect each party has for the other and respect for the contributions they bring to the partnership. It reflects our PRSA Member Code of Ethics under which we value fairness and ethical conduct that promotes competition and safeguards confidences. It will save time and money. It is the right thing to do.
Sandra Longcrier is APR and a member of the PRSA College of Fellows. She is principal of Longcrier Communications, an integrated communications consulting business she started in 2015, after more than 30 years in all aspects of corporate and government communications. Sandra is the 2016 Ethics Chair for the OKC Chapter of PRSA and the PRSSA co-liaison at the University of Oklahoma for this semester and 2017. She served as a director-at-large on the National PRSA Board in 2000 and 2001, is a past president of the OKC Chapter, and is on the ballot to be one of the OKC Chapter’s Assembly Delegates in 2017. You can find Sandra on Twitter @LongcrierComm, on Facebook at Longcrier Communications and at LongcrierCommunications.com.