A best practices guideline recently issued by the American Association of Advertising Agencies (AAAA)–designed to help protect its members from misappropriation of their ideas by advertisers who offer no compensation in return–has served as inspiration for the Association of Independent Commercial Producers (AICP) to draft language that production companies might consider using in order to address the practice whereby a number of agencies treat as their property those ideas presented in a director’s treatment, also sans any direct compensation.
Such detailed director treatments can prove of value to an agency but generally result in no tangible benefit for a production house if the job ultimately goes to another shop. Most disconcerting–if not galling–is when the ideas of a director at production company A wind up being deployed on a project that gets awarded to production house B.
AAAA Language
The aforementioned AAAA guideline reads, “Advertiser acknowledges that any and all ideas, concepts, strategies, trademarks and materials that Agency presents or provides to Advertiser (the ‘Presentation Concepts and Materials’) are being presented or provided for the sole purpose of allowing Advertiser to determine whether Advertiser wishes to use the Presentation Concepts and Materials and to engage Agency’s ongoing services. Advertiser acknowledges and agrees that the Presentation Concepts and Materials are, and will, remain Agency’s property regardless of any payment made by Advertiser to Agency in connection with Agency’s participation in the review. Agency shall retain all rights, title and interest in connection with the Presentation Concepts and Materials regardless of whether the physical embodiment of the creative work is in Advertiser’s possession in the form of copy, artwork, etc.
The guideline goes on to state, “If Advertiser ultimately decides, in its discretion, that Advertiser would like to use or exploit the Presentation Concepts and Materials in any manner, or if Advertiser would like to engage Agency’s ongoing services as Advertiser’s advertising agency, Advertiser and Agency will negotiate in good faith and enter into a separate agreement setting forth the terms of Agency’s services, or of such use or exploitation, including the amount of Agency’s compensation.”
Simpatico
In an AICP memo sent to its general membership, Matt Miller, president/CEO of the AICP, wrote of the director’s treatment quandary, “We see this misappropriation of ideas as being detrimental to the business and the creative process, and it would seem that advertising agencies themselves [based on the AAAA guideline] feel the same way when it comes to their ideas.”
Thus the AICP memo went on to suggest language that production companies may wish to consider using in a preliminary agreement with the ad agency, regardless of whether a production agreement is eventually executed between the parties.
The proposed preliminary agreement clause reads: “Advertiser and Agency acknowledge that any and all ideas, concepts, strategies, trademarks and materials that Production Company presents or provides to Agency (the Presentation Concepts and Materials) are being presented or provided for the sole purpose of allowing Agency to determine whether Agency wishes to use the Presentation Concepts and Materials and to engage Production Company services. Production Company shall retain all rights, title and interest in connection with the Presentation Concepts and Materials regardless of whether the physical embodiment of the creative work is in Advertiser’s or Agency’s possession in the form of copy, artwork, etc.
“If Advertiser or Agency ultimately decides, in its discretion, that Advertiser or Agency would like to use or exploit the Presentation Concepts and Materials in any manner, or if Advertiser or Agency would like to engage Production Company’s services, Advertiser and/or Agency will negotiate in good faith with Production Company and enter into a separate agreement setting forth the terms of Production Company’s services, or of such use or exploitation, including the Production Company’s compensation.”
The AICP memo concluded by asking production companies that elect to use this clause to report to the AICP how agencies are reacting and responding to the contractual provision. At press time, Miller said he had not yet received feedback from any member houses.
SHOOT tried to get feedback from the AAAA on the AICP memo. The AAAA issued a “no comment.”
