Is Your Work Protected? Understanding Intellectual Property

September 1, 2015

[ikon images/corbis]
[ikon images/corbis]

You spent a few months building a relationship with a prospect. You submitted a well-thought-out proposal, complete with some of your best, most unique recommendations to impress — ideas that you developed exclusively for them.

Then, after another few months of back-and-forth communications, the client finally gave you the business. You had a kickoff meeting to go over your ideas and campaigns, all of which were enthusiastically embraced.

But then, one month into the project, your “something’s not quite right” alarm bells start going off. Your new client has stopped returning your calls. And, when she finally does call, it’s with a contrived excuse about not being able to implement your proposed plans for various reasons, such as complications from the home office, rethinking the budget or timing issues — fabricated reasons to escape the contract.

Meanwhile, during this process, you learn that your client had implemented the plan that you developed and submitted while trying to get out of her agreement with you.

You’ve always run your business built on best practices, developed your pitches, submitted your proposals based on good faith and treated prospects and clients with the highest ethical standards, with the expectation that they would treat you in the same manner.

Thankfully, for the most part, the majority of clients and prospects are honest and ethical in their approach to business as well. But what can you do to protect yourself against scenarios like this? What recourse, if any, do you have?

We posed these questions to some agency executives for their experience with intellectual property, and also asked an intellectual property attorney for input.

Here’s what they had to say, what we learned and what you can do to avoid finding yourself in this situation:

Knowing your rights

Agencies have been dealing with the issue of intellectual property rights since the beginning of time. As Picasso once said, “Good artists borrow, great artists steal.”

Jan Talamo, chief creative officer and head of brand strategies at M Partners, a boutique PR and marketing agency, recalls more than a few times when his agency pitched solid spec ideas but did not receive the business. Months, and sometimes years later, he would see clients use his original concepts in their branding efforts.

“The agency business is the most brutal business in the world,” Talamo said. “A lot of time and creative energy goes into client and prospect pitches. Not knowing whether or not your ideas will appear in one form or another when you don’t win a pitch is one of the main reasons agencies are reluctant to participate in ‘cattle calls.’”

He added that he was recently in a pitch where the CMO based the RFP on hypothetical scenarios specifically because she didn’t want the agencies to feel their work would be used down the road.

“I thought that was a stand-up thing to do,” Talamo said.

John Senall, principal and founder of Mobile First Media, a digital and integrated communications firm, and immediate Past Chair of PRSA’s Northeast District, thinks that much of the challenge has to do with the industries that we work in, and the deliverables of the trade.

Communications and PR concepts and plans are, by nature, less physically tangible than other products. Senall said that while our ideas may be original, they are still hatched and executed using tools and tactics that have proven to work over time.

“If I am being asked to provide more details than seem usual during a pitch or in a proposal to a prospective client, or being pressed for more follow-up information, I consider pausing right there, as it could be a warning sign,” he said. “Ethical clients should be looking for ideas but also for experience and a proven track record of results. They should absolutely not be looking for the proposal to be written out in a roadmap they can run with themselves.”

Expressing your ideas

So what steps can a PR agency or consultant take to protect their intellectual property rights? And what comprises intellectual property?

According to Michael Lasky, partner, co-chair of the Litigation Practice Group of Davis & Gilbert LLP  and chair of their Public Relations Law Practice Group, a PR firm’s intellectual property can be almost any written or visual expression of its ideas. These may be contained in an agency’s strategy whitepaper to a prospective or actual client, a PowerPoint or in a PR plan or proposal.

One of the most common forms of protecting intellectual property prior to a contract is with a copyright notice, in an obvious placement, with the date and author’s name, such as: Copyright © 2015 [Copyright Owner’s Name]. All Rights Reserved.”

As Lasky said: “In addition to the copyright notice, agencies and consultants can protect intellectual property with a formal pitch agreement, which is the most protective for an agency. The second-most protective is a non-disclosure agreement; the third is known as an ‘elegant email,’ which basically describes that the agency or consultant owns the materials as discussed with the prospect or client.”

What about a situation when a contract is terminated and the client implements ideas or marketing plans that the agency made?

“Agencies can be paid for their ideas and marketing plans submitted, provided that those terms were spelled out in the contract,” Lasky said. “There are many aspects to the topic. The protection of intellectual property rights is definitely not a black-and-white issue. Agencies and consultants need to understand and be trained on intellectual property and laws that affect their output.”

Achieving a balance

Before your next presentation to a prospective client, review your contract language to make sure you are fully protected. Also, consider working with an intellectual property law firm so that you have defined the parameters regarding all of the materials that you present to your clients.

Include verbiage in your agreements spelling out ownership and any related transfer usage rights and agreed-on remuneration. At the very least, ensure that the copyright information is clearly displayed on your materials.

Protecting intellectual property, while simultaneously not alienating a client or a prospect, can be a delicate balance. But you can achieve this balance by taking some of the ideas in this piece into consideration. In the end, all parties will benefit.

Leigh Fazzina is principal at Fazzina & Co. Communications Consulting, Inc. a health-care PR and communications consultancy. She is a director-at-large for the PRSA Philadelphia Chapter, and past Chair of the PRSA Health Academy. Twitter: @LeighFazzina.

Bob Musial is a principal at StreetSmart Business Development, LLC. His company provides start-up and established B2B clients with strategies and coaching techniques designed to enhance communications in order to generate and protect revenue. Twitter: @BobMusial.


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