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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Advertising pitches can give rise to IP disputes

When companies in Colorado and around the country decide to launch new media campaigns to promote their brands, they often ask several advertising agencies to submit their ideas during what are known as pitch sessions. This can lead to thorny legal problems as the winning campaign often contains marketing strategies and ideas that are similar to strategies and ideas submitted by agencies that failed to win the contract. Matters can also become complex when the winning agency includes some of its ideas in pitches it later makes to other clients.

Rampant creative theft in the music industry prompted Congress to revise the nation’s intellectual property laws in 1976. The passage of the Copyright Act extended protection to all original authored works, which applies to ideas contained in marketing strategy pitches. The law also transferred ownership of intellectual property from the party that pays for it to the party that creates it. This means that marketing ideas remain the property of their creators even after they have been submitted for consideration and approved or rejected.

Companies sometimes seek to avoid legal problems over advertising ideas by including language in request-for-proposal documents that states any materials submitted will become their property. However, these provisions may be difficult to enforce absent some sort of formal agreement. Association of Accredited Advertising Agencies, which are also known as 4As, in many countries advise their members to reject RFPs containing such language.

Attorneys with experience in copyright cases may suggest avoiding these issues by drafting documents that make clear when intellectual property changes hands. Lawyers might also recommend taking out copyright insurance to provide additional protection against possibly costly litigation. When copyright, trademark or patent disputes do arise, attorneys may seek to resolve them amicably to avoid prolonged legal battles over matters that are subject to interpretation.

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