Now, more than ever, PR firms are involved in creating speculative original work in the new business process for an ever-increasing number of competitive pitches and RFPs. In this environment, it is critical for PR firms to protect their intellectual property when pitching prospective clients or even when seeking new projects from existing ones.
The intellectual property laws that are most likely to come into play in connection with any speculative work are copyright and trademark. Copyright generally protects the images, text, and other creative elements of the marketing materials that an agency might present to a potential client. Trademark generally protects the names, logos, or taglines used to identify the source of a good, service, product, or promotion that an agency might create for a new business pitch.
There are four different ways a PR firm can protect its intellectual property in the speculative pitch process. Some alternatives provide more protection than others, but each can be used and tailored depending upon the circumstances. From most protective to least protective, the four methods are as follows:
- Have a signed pitch agreement: Prior to the pitch, the PR firm should provide a pitch agreement to the potential client. This agreement should state that the prospective client will not use or disclose the creative work or ideas presented unless and until a mutually agreeable form of compensation is worked out. This agreement does not require the marketer to hire the agency or use the agency's ideas, but if the marketer chooses to do so, it simply provides that the agency will be compensated at a mutually agreeable amount. Such a practice is endorsed by the American Association of Advertising Agencies and the Council of Public Relations Firms. It is especially important that knowledgeable legal counsel is consulted in connection with the preparation and use of a pitch agreement so that it is a “turn on” and not a “turn off” to the PR firm's new business prospects.
- Use copyright notices on the pitch materials: Make sure that any pitch materials have a copyright and notice (for example, © Davis & Gilbert LLP 2011). This legend puts third parties on notice that the creator regards the materials to be protected by copyright law and that the material cannot be used without the creator's permission. Pitch materials should also include a notice that the materials contain confidential and proprietary information protected by US law. The correct use of copyright notices can actually enhance the reputation of the pitching PR firm by demonstrating to its potential clients that it knows how to create and protect intellectual property – and that if it can do so for itself, it will surely know how to do so for its clients.
- Send an “elegant email”: When it is not possible for a PR firm to obtain a signed pitch agreement, it should consider sending a simple email to its potential client. The email should be conversational in tone, thank the potential client for the opportunity to pitch for the PR services, and include a sentence to the effect that the agency retains the rights to the materials presented, unless an agreement is reached on the appropriate compensation. Here again, an ounce of prevention may be worth a pound of cure and a brief consultation with legal counsel may be appropriate.
- Oral disclosure: A PR firm can orally inform the potential client at the outset of the presentation meeting that it is excited to have the opportunity to present and that its presentation contains confidential and copyrighted materials of the agency, which may not be used without the firm's permission. Although the oral disclosure is the least effective means of protection (since it might not only be difficult to prove, but it also might not be enforceable), it is still better than nothing.
Intellectual property is the currency that separates one PR firm from the next and one marketer from another. Both PR agencies and marketers have a compelling reason to understand how best to ensure that intellectual property rights are valued and protected.
Michael Lasky is a senior partner at the law firm of Davis & Gilbert LLP, where he heads the PR practice group and co-chairs the litigation department. He can be reached at firstname.lastname@example.org.