Tuesday, February 16, 2010

Who owns your public relations ideas?

If ideas are the premiere currency of public relations, then who owns them when you're either pitching a new client or you've contributed them to a current one?

Creativity is desired at such a premium, that I would offer a special bi-annual monetary bonus to employees who could devise unsolicited PR ideas which our clients could embrace and execute. I was looking for what I dubbed "in the shower ideas," the kind that would suddenly come to you while you were under the spray.

In my long experience, really good PR ideas are tough to come by, whether they are solicited by a client or not. Not everybody has the same ability to imagine, free associate and be so plugged, so when the lightening bolt hits, you can't present it to the client fast enough.

Ownership of ideas created for a potential client presentation is becoming a hot potato issue in the advertising world, as agencies are fighting for their intellectual property rights. In a recent Advertising Age article, "the 4A's has seen a spike in recent months in agencies complaining about clients' desire to own ideas and work shown during the new-business process."

A 4A's EVP explains: "The nature of the complaints is that [requests for proposals] will come out, and, buried in the 14th paragraph of a [non-disclosure agreement], is a paragraph or sentence that says, 'Oh by the way, and in addition to protecting the confidentiality of our agreement, we the client want to own all ideas and work product that comes out of the review process.'"

For public relations professionals wooing potential clients, this is a tricky situation because not only do you want them to like you but you want them to love your ideas and believe me, it's your ideas that separate you from the pack.

Yet, what is going to prevent them from hiring another firm and telling them to execute your ideas, masqueraded as their own? It's enough to drive a conspiracy-minded person mad!

PRNewser just polled their readers about the topic: "Only 30% of respondents said they would decline to participate in a pitch if they were asked to do 'custom work' for said pitch. Another 55% said they would work up a plan, but keep it 'somewhat generic' to mitigate any potential risk."

I'd like to know how the readers would feel if they were paid to do the custom work. The economy has tilted the tables and has some PR firms bending over backwards to generate revenue, even at the cost of drawing up a detailed plan, and even if they are not qualified to do the work.

Safeguarding the results of your hard-earned brainstorm means enlisting the insight of your friendly and knowledgeable digital lawyer.

"Ideas are not protected by Copyright; however, there are practices that may be undertaken to protect ideas, as well as some legal theories by which ideas may be protected, provided the Copyright Act does not serve to preempt such protection," says Robert deBrauwere, Partner, Digital Media Practice Group, at Pryor Cashman LLP. "The most practical means to protect an idea is via contract in the form of a non-disclosure and confidentiality agreement, which should be executed by the party to whom the idea will disclosed in advance of any disclosure."

His suggestion is an interesting conceit, but I'm not quite sure a potential client would be receptive to signing that kind of release ahead of time, especially if none of the other contenders are doing the same. It may also send a subtle signal of distrust. Larger companies may be able to get away with it, but smaller firms may need to take a wilier route.

deBrauwere does suggest "you should always affix a copyright notice to any work of authorship. It will likely serve to dissuade people from copying and it will also serve as notice of a claim of ownership, to the extent that any copyrightable expression may be taken from such work (as opposed to mere ideas)."

What about writing a disclaimer along the lines of "This information is being provided solely for the purposes of this project proposal and may not be used for other purposes without the author's permission?"

This tact may be "helpful because it can create a contractual obligation, either a formal contract or an implied-in-fact contract," says deBrauwere.

Another way to protect yourself is to follow what the COO of the career-counseling network Five O'Clock Club suggested in a November 2006 Wall Street Journal article: "Exclude necessary details that would then make [a proposal] impossible to implement."

There's no reason to issue the "War and Peace" of PR plans for any RFP or presentation, because you are just giving away far too much and practically asking for it to be filched.

You were invited to the table in the first place because your guns should be loaded -- your reputation and track record in the potential client's field, credentials, the support of current and former clients and ideally journalists as well.

Any potential client should be able to detect in a live conversation that you know what you are talking about and how you can handle their engagement. Either your personalities are going to jive or they won't. Your attitude and enthusiasm will go a long way.

And "you've got to show some leg," as New York Times media columnist David Carr likes to say.

There's nothing wrong with unveiling a general game plan and providing a few practical details. You've got some killer creative ideas? Just share one or two and explain them on the surface -- how they'll work and what the results could be.

In his excellent book, How To Acquire Clients, Alan Weiss advises to provide some small free value early on: The best way to sell your ability to help is, well, to help! The philosophy you create is, "If I'm getting this much help from this person, how much better off would I be if I actually hired him?" You obviously can't provide in-depth solutions or recommendations... but you can provide observations, experiences from elsewhere (which is why, supposedly, you're there to begin with), questions and ideas, which gives the prospect two impressions: 1) There are some alternatives available that perhaps his or her own organization (or other consultants) haven't considered and 2) You are one smart person."

Granted, you are walking on a fine line to both thrive in our profession and stand out as individuals among the competition.

If your ideas are hot, you'll see the "click" in their heads because as I said earlier, great ideas are worth a million bucks, and you'll sense their excitement. One of the most common reasons clients ditch their PR firms is finding they have no ideas or ran out of them, so you know how much they'll be valued up front.

However, once I'm on board with a client, the line is crossed and my ideas are freely theirs. If some lightening bolt hits me about an ingenious press event while standing in a crowded subway car, I can't tell my client fast enough. And if they love it and all the pieces make sense, I don't even think twice about donating that baby.

I've given up some pretty amazing concepts over the years to clients, and a few are still being done today, long after we've parted ways. I created "The Good Housekeeping Good Buy Awards" almost a dozen years ago to help put that magazine's famous Institute on the press map every holiday shopping season. Those awards are still being held today. Way back when, I pushed long and hard to get SmartMoney magazine staff writer Jean Chatzky on the Today show to do personal finance segments, and now she's a brand name who has written a bunch of books, speaks around the country and still an NBC-TV star.

But just like anything else in public relations, you can't run out of ideas. I have to keep coming up with them, giving away my babies for the good of the clients. If your clients succeed, you succeed.

Ideas are the most valuable currency of public relations. Be selective and protective with what ideas you unveil when presenting to a possible client, but you must turn into a philanthropist giving them away generously and happily once they've signed on the dotted line.

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