Pitch Protection

The creative staff of the Breakthrough Ideas, Inc., advertising agency, spent months developing a new multimedia advertising campaign for a potential client in the retail industry. But when executives pitched the idea, the client didn’t bite, offering encouragement but ultimately giving a thumbs down.

Later, someone at the agency sees a marketing brochure from that prospective client that contains language and artwork similar to what his agency pitched. It’s so similar, in fact, that upon further study the agency believes it’s the victim of idea theft.

Breakthrough is a fictional agency, but the scenario is all too real. Companies that routinely pitch creative ideas to prospective clients—Web development companies, architecture firms, and marketing organizations, to a name a few—often face the problem of others pilfering their intellectual property.

“It’s an issue on the radar of companies like advertising agencies because most have been burned at least once,” says Stephen Bergerson, an attorney specializing in intellectual property issues in advertising with Minneapolis-based Fredrikson & Byron, PA. “Someone pitches an idea, the client doesn’t hire them, then down the road the client ends up using the idea in some form in their advertising or marketing.”

So how can a creative company protect its intellectual property, arguably among its most valuable assets?

Protection Avenues

The starting point should be copyright protection, say intellectual property attorneys. Many organizations don’t realize their creative works are protected by copyright the moment they are fixed in some tangible form. That means that the instant a copywriter taps out advertising copy on a computer screen, or designers put the finishing touch on a new logo, those creations carry copyright that can be protected in a court of law, Bergerson says. Publication isn’t required for copyright protection.

It’s equally important to know that copyright doesn’t protect underlying ideas, only the expression of those ideas. James Quinn, a shareholder with Minneapolis-based law firm Larkin Hoffman, explains the difference this way: “Anybody can write a book about a guy with one leg who sails around the world chasing a great white whale. You just can’t write Moby-Dick.”

While applying a copyright symbol to your work offers baseline protection—it serves as a “no trespassing” sign—taking the next step and registering your copyright with the U.S. Copyright Office expands your rights. Registration is a prerequisite for filing a copyright infringement suit and creates eligibility for statutory damages and attorneys fees in successful litigation.

“Registering copyright gives you more legal leverage because your remedies are enhanced,” Bergerson says.

While registration sounds good in practice, the truth is that organizations that generate hundreds or thousands of creative ideas every year often see it as impractical. Registration costs are minimal ($35 for an online filing), but it requires filling out application forms, sending in nonreturnable copies of works, and other administrative procedures.