Adland should stand up for its intellectual rights

As digital ads become more prevalent, agencies and clients must tackle the issue of intellectual property.

iPint...legal battle
iPint...legal battle

"Good artists borrow," Picasso said. "Great artists steal." At least, Picasso is the person who the quote is most often attributed to. But it could have been TS Eliot. Or Stravinsky. No-one seems sure on the point, so at least two of these luminaries are getting credit for an idea not their own. Is someone ripping someone else off? And, the question arises, if the good and the great spend all day borrowing and stealing, just who is coming up with something that is actually original?

In truth, creative industries can thrive on the reconceiving and repurposing of previous work. There are just seven basic plots that any story can have - so you are only ever going to come up with a variation on a theme. As a result, the ad industry has traditionally taken a relaxed attitude to such "borrowing". Feel free to embrace your predecessors' work and extend their thinking in new directions. So long as there is some new twist that can raise a smile or an eyebrow, all is well, and intellectual property does not generally come into it.

Computers make "cut and paste" alluringly straightforward. "Search and replace" in the account department might be the occasional guilty secret for the quick turnaround presentation, but creatives can succumb to this digital temptation too. Deadlines loom, inspiration runs dry, pressures increase, needs must. It is all too easy to see something online, scan it and tweak it, reverse-engineer and reproduce it.

But while digital makes it easier to go a little bit "Ctrl+C, Ctrl+V", it makes it harder to get away with - the net's collective consciousness quickly finds and exposes the odd bit of creative "borrowing".

Youthoughtwewouldntnotice.com, for example, is a blog dedicated to identifying and highlighting any unauthorised use of creative license. If your work is directly derived from someone else's, chances are this creative crime will become very noticed, very public and very embarrassing, very quickly.

The current poster boy for such IP pitfalls is the Carling iPint application, created for the iPhone by Beattie McGuinness Bungay. BMB allegedly saw an "iBeer" application in the US, thought it fun for its client, and offered to license it from the developer, Hottrix, which politely declined. It was, after all, shifting this app by the gigabyte at $2.99 a pop. BMB then allegedly decided that it would just hire someone else to create its own version of the app, give it away for free, and Hottrix could live to regret its shortsightedness.

I say "allegedly" because Hottrix is suing Carling's parent, Coors Brewers, to the tune of £7 million for "irreparable damages and lost profits". Hottrix, apparently, is not so relaxed about a cheeky bit of "borrowing" as the advertising people expected.

Technology companies take IP very seriously indeed. Amazon was famously vigorous in filing and defending a patent for "1-click" online shopping. Microsoft is, rightly or wrongly, routinely decried in technology circles for leveraging ill-guarded IP for its own end. As the marketing industry moves inexorably from offline to digital, and customer engagement moves from narrative to interaction, agencies will bump into such challenges more and more often.

Creatives now have to start asking the sort of questions that technology companies have been thinking about for years. Let's imagine someone such as Dulux wanted to create a mobile colour co-ordination application. The user takes a photo on their iPhone, which sends it to a server that analyses the image and creates a custom room colour scheme with the image's predominant colours, which you can view and buy on the phone. Helpful? Absolutely. Cool? Anything helpful is cool. Drives sales? Sure. Is it valuable then? Should its IP value be protected?

What if Dell created a mobile application that takes a picture, and uses its colours to create the design of a Dell laptop that you could then buy online? It's the same basic principle. Should Dulux issue a "cease and desist"? Should it do so if Crown Paints did the same thing for wallpaper co-ordination, but not room colour design? What should Dulux do if Crown launched what was more or less a clone of the original app?

Equally, Fiat has just launched an eco:Drive application, developed with AKQA. This service tracks the car's performance and CO2 emissions. Taking this data from the car with a USB drive, users can analyse their driving habits on their PC, and get suggestions on how to drive so as to cut their carbon footprint. Such services go beyond traditional marketing activity and move into the realm of product development - we are creating a service that makes the car more efficient. AKQA always assigns the full IP rights of every project to its client, so this idea is wholly Fiat's.

But what if AKQA had pitched a different idea that Fiat decided it did not want to implement? Could an agency approach another client and attempt to sell an unused concept to it? What if the agency was retained at the time it came up with this unemployed idea? Does everything that the agency comes up with while on retainer belong to the client, even if it was never presented? What if the agency had produced the idea as part of an unsuccessful pitch?

If the answers don't seem immediately clear, it is probably because agencies are not used to asking these questions. But they are questions the industry had better start asking. Product, service and marketing innovation over the next several years will derive predominantly from digital. And, more often than not, agencies will drive this digital change.

Agencies will need to start thinking seriously about the IP implications of their ideas, and ensure they convey these clearly to their clients. If they have "borrowed" something from somewhere, they had better be upfront about it. Forewarning their clients is forearming them.

Moreover, they might want to start thinking about whether they should retain IP in some of the ideas that they come up with. For example, an agency might come up with a new way to present clothing online that improves sales by 10 per cent. On a large e-commerce site, that might make a lot of money. On several large e-commerce sites, that might make several lots of money. Agencies will have to pause and wonder whether they want to give this to one client for a one-off fee, or create a white-label service that they license to several clients for a continual revenue stream.

For their part, clients will need to be zealous in identifying and defending the IP created in their digital work, and ensuring that they incentivise agencies to deliver the most valuable IP to them alone. Clients are also going to need to pay careful attention to the ideas that their agencies come up with - the last thing they want is a prosecution for inadvertent IP theft.

And everyone should expect that, as more IP issues arise, artistic borrowing and stealing by the great and the good, the busy and the just plain lazy, will become harder and harder to get away with.

- Craig Walmsley is principal consultant at AKQA.