A major advertiser this week threatened to drive a coach and horses
through standard pitch practices by urging a High Court judge to rule
that it owned the copyright to creative work presented by an agency
before a contract had been signed.
Hutchison Personal Communications claims Hook Advertising was
contractually bound to hand over the rights to the Rabbit telepoint logo
it devised even before the idea had been patented, and prior to knowing
whether or not it would ‘bomb’ during research.
The case is the climax of a marathon dispute between Hutchison and Chris
Joseph, Hook’s chairman and the creator of the logo, which began when
the agency was fired from the pounds 4 million Rabbit account four years
Mrs Justice Arden’s ruling looks set to create the first legal precedent
to determine the amount of control agencies have over their creative
Joseph, however, was only a partial spectator at the hearing. He sat
tense and silent at the back of the court, recovering from a bout of
depression that had earlier caused the case to be postponed for a week
(Campaign, last week).
The legal argument centres on a clause in the contract that was based on
a standard one produced by the Institute of Practitioners in
Advertising. It said Hook would assign ‘all or any ‘ad material’ as is
vested in us’ to BYPS - a telepoint consortium consisting of Barclays,
Philips and Shell.
Hook’s lawyers argue that the logo was produced as a result of the
agency’s initiative before the five-way pitch, rather than at
Hutchison’s request. They argue that Hutchison’s claim to have the
copyright assigned to it should be thrown out.
But Mark Platts-Mills QC, acting for Hutchison, told the judge: ‘Our
contention is that ‘all and any’ means exactly what it says.’
He added: ‘The Rabbit logo was plainly created for the purpose of our
advertising, and there is no argument that because it was created before
the agreement was entered into it can’t be ‘caught’ by it. If copyright
is vested in Hook, Hutchison gets it.’
The case continues.