Custodians of creativity

April 22, 2024
Agencies & brands are getting into scraps too often

In the dynamic world of advertising, where ideas are the currency and innovation is the lifeblood, agencies face a dual challenge — to create groundbreaking campaigns while safeguarding their creative capital from exploitation.

Consider the recent spat between advertising agency Bang in The Middle and its former client Medanta. The agency claims that Medanta is using a campaign idea that was pitched during their partnership from November 2022 to November 2023.

The idea was rejected at that time. Naresh Gupta, co-founder and CSO, Bang in the Middle, said his agency has sent the former client a legal notice; Medanta refused to participate in our story. But our story is not about who said what to whom and when. The story is about how to protect an advertising idea because such scraps have become common these days. Remember the time when former chairman and CCO of MullenLowe Lintas Group Amer Jaleel came down on financial services company Motilal Oswal for what he described as a “blatant and brazen copy of one’s creative efforts”. That was two years ago but the grievance was the same.

One route is legal protection. For that, a mere vague idea would not be enough. Explains advocate Karnika Vallabh, an intellectual property law specialist, “If a detailed pitch recorded in a tangible format is made and delivered, then an advertising agency can rely on such detailing and reasonably claim infringement by others.” Signing non-disclosure agreements before pitching ideas and clearly outlining ownership rights and compensation terms in contracts is a must, say experts.

Still, very few agencies have the time, the resources, or the wherewithal to resort to protracted legal battles, points out Samit Sinha, founder and managing partner, Alchemist Brand Consulting.

Meanwhile, technology can also offer agencies extensive means to protect ideas. “Technology does offer opportunities for agencies to protect their work through digital documentation and timestamps. Tools like digital signatures, watermarks, and blockchain can help establish ownership and prove the origin of ideas. Additionally, project management software and collaboration platforms can track contributions and communication, providing evidence of agency involvement,” says Yasin Hamidani, director, Media Care Brand Solutions.

Ambika Sharma, founder and MD, Pulp Strategy, cautions, “The efficacy ultimately depends on the willingness of brands to adhere to ethical standards and contractual agreements.”

The biggest need, however, is to transform the way the industry functions. That can start with charging a nominal pitch fee, say experts, but this could be a tall order. “In my opinion, no strategic or creative pitch should be for free. But I can also see that this will not happen anytime soon. Look at LinkedIn; every day a small unknown client will post about seeking an agency, and 50 will respond within an hour. Why will clients pay?” asks Bang in the Middle’s Gupta.

Still, agencies such as Talented and Admatazz have started enforcing a pitch fee. “We do charge a pitch fee in a lot of cases but that’s a trivial amount to ensure the client is serious and not shopping,” says Yash Chandiramani, founder and strategist, Admatazz. Gautam Reghunath, co-founder of Talented, adds, “No other industry gives so much intellectual property away for free like we do. Agencies today have a lot of standing up for ourselves to do to correct historical errors in our industry.” This is why, nearly four out of every five pitches are now paid engagements at Talented, he states.

The problem is, the industry often fails to speak up for itself, says Agnello Dias, co-founder, Spinach Experience Design. “The main issue is implementation or enforcement of one’s rights, which most agencies balk at due to fear of being branded as difficult. It’s a terrible complex for such a critical industry to have,” he sums up.

In the latest alarming reveal, Nestle is found to follow global guidelines of zero added sugar in baby food across Europe. But in the Global South, India included, it was found to have nearly 3 grams of sugar per serving. WHO advises against the introduction of added sugars before the age of two years, yet there is no upper limit in our country for the prescribed added sugar served to infants.