Agencies have long been under the constraints of work-for-hire agreements and as such they don’t maintain rights to their ideas. In a digital era where the lines of content distribution blur across advertising and entertainment channels, those ideas are easily repurposed and the agency that created the idea is often cut out.
For example, McCann Erickson’s Staples ad campaign (the easy button) resulted in Staples ringing up $7.5 million in unanticipated sales from the novelty item. The roaming Gnome statues, spawned by the Travelocity campaign are being sold for $19.99 each. The agencies that created the ideas…get nothing.
From the AdWeek article:
Attorney Doug Wood, a partner at Reed Smith, New York, said, “If you look at the typical agency contract, it says: ‘Ad agencies transfer the ownership of all ideas and concepts to their clients.’ [Clients] can say, ‘The agency can’t use that idea anywhere else. It can’t control where I, the marketer, use it, how I use it, whether I use it at all.’ There are exceptions, but generally speaking, they hold fast to the idea that ‘you’re my agent and I don’t [pay to] retain you and then give you additional royalties and license fees. You’re like buying a pencil. Just because I use you for another purpose doesn’t mean I have to pay for you again.’”
“As advertising has become increasingly about content, agencies are no different from industries like publishing, motion pictures, video games, music, etcetera,” said Tom Finneran, evp, 4A’s agency management services.”
Joe Lawson, The Martin Agency copywriter behind Geico’s cavemen, who is writing the ABC pilot, needed client permission to do that.
Industry creatives are still second-class citizens when it comes to after-market use of their ideas.
Even their partners in producing workâ€”musicians and photographersâ€”retain ownership rights to their work.
Agency compensation issues aside, the question remains: What is the impact on industry creative people as a result of antiquated practices involving the ownership of intellectual property?