Protecting your pitch: to NDA or not to NDA?

So, you've got an opportunity to pitch to a new client and, after a fruitful brainstorming session with your team, you've got it: The concept that's got 'winning pitch' written all over it.

Protect your creative ideas with an NDA but keep the paperwork simple, writes Geraint Lloyd-Taylor
But there's that nagging fear that your prospective new client could just use you as an ideas mine and go it alone - running off with your campaign idea as you head back to the office empty handed. 

These fears, felt by all agencies at some point, are well-founded and many will want to explore ways to protect their creations and concepts. Unfortunately, however, the fact of the matter is very few elements of a pitch will actually be protected under English law.  

In the case of original illustrations, text/copy, photos, artwork and so on, which might be created for the pitch, these are protected as copyright works and it’s likely the agency will automatically own the rights in these materials. 

Provided it hasn’t agreed to transfer those rights, it can prevent anyone else from copying and exploiting them without permission. 

However, while the materials themselves might be protected as copyright works, the brilliant idea that lies at the heart of the pitch will not. 

In practice, there is real risk of the brand running off with the idea – however novel – and executing it themselves.

So, what to do?

The most important step to take sounds simple. Put in place a robust Non-Disclosure Agreement (NDA) before any ideas get shared.

The NDA should record the other party’s agreement (a) to keep all information about the pitch, including the idea itself, confidential; (b) not to seek to exploit the idea (or anything similar to it), either themselves or with any third parties for at least a certain period (e.g. three years). 

By having the client/prospect agree in writing not to exploit the idea, an agency will be in a significantly stronger position to bring a claim against them if there’s any suspicion of wrongful use or disclosure. 

Tread carefully

Be warned, however. The more restrictions you seek to impose in your NDA, the less likely it is the client or prospect will sign it. 

Until they see your pitch, they have no idea if it's of any value to them, or if it's similar to something they may already have in mind. It’s best to keep NDAs short and to the point.

If pitching to an existing client, check the confidentiality provisions of any existing agreement you have in place with them - they might cover new work/pitches and you might not need a new NDA. 

Never sign an NDA presented by the client or prospect without reading it carefully first. Brands sometimes include clauses that don’t relate to disclosure, and which can harm the agency’s position. Always make sure you understand what you’re signing.

Though certainly not a catch-all solution, always mark all materials and emails as ‘confidential’ if they refer to your confidential information and ideas – especially if you do decide to pitch without having an NDA in place. You can also include a small copyright disclaimer on your materials e.g. "©Your agency Ltd, 2016. All rights reserved"

Remember, while not having an an NDA can put agencies at a disadvantage, enforcing them can be costly and difficult. 

It’s a careful act to balance creativity, flexibility, professional pride and intellectual property, and different tools (or weapons?) will likely need to be called upon for different pitches. 

Geraint Lloyd-Taylor is a managing associate in Lewis Silkin’s advertising and marketing group

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