Contributed By Allein Moore
The rights to the work created by advertising agencies are often misunderstood by both agencies and clients. AdAsia sought the help of a legal firm which has a lot of experience on copyright law. Their report has been published in AdAsia to help the industry and clarify a few issues. Allein Moore, our editor, adds here his comments based on legal advice and discussions with senior executives as well as his long experience in several markets. Please note, much of this content only applies to Singapore. Each Asian market will have some variation.
When I joined Leo Burnett in Singapore as Creative Director I received a call on my very first day from an irate photographer. It seemed the agency had starting using a photograph commissioned from him for a press campaign, and then began applying it to posters across Singapore. Coming from London, I was familiar with copyright laws but in Singapore, if they existed, they were largely ignored in the 1980s. Allegedly, even the Singapore national broadcaster in those days did not pay copyright fees on the songs they played over the radio. Today, Singapore is more sophisticated in the area of copyright although the focus seems to be on literary works and films and not on advertising. It is accepted that a country must be seen to protect and enforce copyright laws if it is to attract businesses and entrepreneurs and Singapore has been catching up. Today the city state has its own Intellectual Property Office of Singapore (IPOS) but judging from the website advertising layouts, copy and graphic designs are not under their purview.
The development of the Internet and the growth of digital media means creative work in all form has a wider distribution. The very nature of digital communication opens up the possibility of others copying the work of others or extracting it and sharing it sharing on others sites.
Films, photographs, illustrations, fashion design, graphic design, stories, opinion pieces, research can be easily downloaded or reproduced elsewhere.
Recently Getty and Agence France-Presse had to pay US$1.2 million to a freelance photojournalist for their unauthorised use of photographs he had posted on Twitter after the 2010 earthquake in Haiti. Even if you have commissioned a photographer, as my Leo Burnett office discovered all those years ago, this does not entitle you to use his pictures for anything further than stated in the original work order and certainly not to just appropriate it from his own Twitter page.
The social media has encouraged the idea that you can simply share articles or photographs. It is very easy to step over the line and find yourself infringing someone’s copyright. Nobody should take articles from online sites or other publications even with the permission of the publisher as the copyright remains with the author unless he has passed over the copyright to the publisher or he was employed by that publisher.
Advertising agencies lack muscle
Models and actors have long demanded residuals. In other words, if the TVC or advertisement runs beyond a year, further fees are required when it is repeated. Photographers (and illustrators), although generally working as freelance individuals, have as profession managed to gain acceptance of the idea that the copyright of a photograph remains with the guy who held the camera. As mentioned earlier, agencies and clients only have the right to reproduce his pictures for that particular campaign. It is amazing to me that the much more powerful advertising industry is still fighting for this right. On the whole, people in the advertising agencies believe that the copyright remains with them and the client only has the right to use it for the ad campaign for which it was commissioned. Clients, on the other hand, honestly feel that as they paid for the advertisement or design it is theirs to use how they wish. And for as long as they wish.
This difference in perception came to a head recently when DoodleRoom, a local design agency reportedly expressed their unhappiness via a Facebook Page over the recycling of a cover for the Singapore Art Week organised by the Singapore Tourism Board. The design was commissioned from the agency last year and then turned up again, with minor changes, for 2014 event. But DoodleRoom wasn’t the agency appointed for the 2014 campaign and so earned no income. The STB responded to the complaint by saying it has the full rights to use, reproduce and modify the 2013 design.
It seems odd that the advertising industry has not really taken a stand on this issue or educated its clients. This ambiguity is something the advertising agency and designers‘ associations should have resolved years ago. With creative ad agencies losing their commission on ad space, one would assume they would try to protect the only thing that they have to sell – their creative ideas. Personally, I feel income is being stolen from them over and over again. One cannot blame the clients, most see it as the normal way of working in Singapore.
It has become increasingly clear to me from discussing this issue with lawyers that if agencies and design consultancies want to keep their rights, they must take more steps to protect themselves. They must have the courage to stand firm on this basic right. On each advertising campaign, on each cover design, the agency or design firm must getting clients to sign off with a written agreement on ownership of the copyright, indicating any restrictions over the use ideas or content beyond the immediate case. This might have a time limit shown or indicate further fees payable on any extension of use.
It is also in the interest of the client commissioning an advertising campaign to have such boundaries clearly stated. Most businesses would not have to be told to do this. Why is the ad industry so woolly?
Media owners, of course, have no copyright claims on advertisements appearing in their pages unless they were created in-house. Neither do Individuals who created advertisements while employed by an ad agency.
Ad agencies themselves should also ensure an agreement with a film production house takes into account any possible repetition of the TVC shot on their behalf . If scenes from the old commercial are used, fees may well be claimed by the production house and the actors may also hold their hands out for further fees
Pitching and protecting ideas
Apart from ensuring the wording on the commissioning agreement clearly establishes boundaries, what else can ad agencies or design firm do protect themselves and their ideas?
As most of AdAsia readers will know, ad agencies spend a lot of time pitching for new business. This involves the best brains in the agency, who will spend many hours planning, researching and creating ideas and layouts. This costs the agency a great deal of time and money. In Singapore, the prospective client does not pay agencies they have invited to pitch (once upon a time, the 4As agencies demanded a fee for this professional advice and business problem solving but let this practice slip). There is probably no other industry that gives away its product without any charges or safeguards. Some prospective clients, I am told, even present the agencies with a pre-pitch contract that surrenders all the agency rights to the ideas to the advertiser even if they are not awarded the business. Most agency people have sad tales of presenting ideas to a prospective client and finding later on these same ideas were rehashed and used by the winning agency.
Sadly, it appears there is nothing you can do about it legally. If enough elements of the original dummy advertisement that was presented are still been retained, there may be grounds for legal action based on copyright infringement. But an idea, a memorable new brand name nor even the concept and mechanics of a promotion, cannot be copyrighted. The brand name or logo design can only be protected if it is registered as a trademark. To protect this regionally or worldwide is a long drawn out process and very expensive. It would be far beyond the means of an ad agency or design firm to do this for every pitch.
Measures to protect ideas
The only real protection of the copyright for your ideas and work in this situation, as in a normal commissioning situation, is a formal signed-off agreement. Maybe the 4As could create and issue a standard form which would demonstrate a solidarity in the industry. Without such an agreement, the ad agency or design firm is just giving away its intellectual property.
Recently Singapore has been fortunate in the establishment of a new site where one can register creative work, ideas, business plans etc. We reported a few months ago the setting up of PitchMark.org by Mark Laudi, formerly of CNBC and currently the head of Hong Bao Media. PitchMark hopes to prevent creative ideas from being stolen by having them registered in advance of a creative or business pitch. Laudi is also encouraging clients to also sign up to show that they conduct business ethically and respect the rights of creators. PitchMark will also help on legal defence should the registered ideas be misused. Registering on PitchMark may help the case morally and act as a deterrent, but it seems from my investigation that legally it is very hard to actually copyright an idea. IPOS makes this very clear.
A written agreement between the commissioning client and the ad agency setting out the parameters is the only sure way to get legal protection for your ideas. You should insist on this on each project unless you have an embracing client/agency contract which covers this point. On relooking at the legal position, it is even doubtful that the photographers working in Singapore own the copyright of the negative or print of their shot. This group also need to be very careful to protect themselves when commissioned.
Attached is a contribution by the lawyers at Ravindran Associates who specialise in this area.
Note: You may reproduce all or part of the article written by Allein Moore as long as you credit AdAsia magazine as the source. You can link to www.adasiaonline.com to connect with the contribution by Ravindran Associaties.