Can you really own any idea?

From an idea resurfacing after a rejection to a creative taking their pitched work to a rival agency, there’s often a piece of work causing contention. Protecting intellectual rights is a full-time job.

The BBC denied claims of plagiarism made by animation studio This Thing of Ours against its Winter Olympics ad
The BBC denied claims of plagiarism made by animation studio This Thing of Ours against its Winter Olympics ad

It's a squabble as old as time. Good artists copy, great artists steal... look at Damien Hirst; he's facing plagiarism claim number 16. But art doesn't live in a vacuum, and some ideas can be mimicked subconsciously. So can you really own any idea?

It feels like every other week in adland, there's a piece of work causing contention. An idea resurfacing after a pitch rejection, or a creative packing up their desk and taking their ideas to a rival agency. Creatives often fight to lay claim over good work, and rightly so.  

Take Coinbase, for example. It was the talk of the Super Bowl. A black screen, with a QR code hitting corners, riffing on the bouncing DVD meme, all the while promoting cryptocurrency. And it scored a touchdown with viewers, by virtue of its simplicity.

Chest puffed out by the ad's success, co-founder and chief executive Brian Armstrong took to Twitter to give fans a behind-the-scenes explanation of the inspiration. According to Armstrong, an external agency pitched a bunch of ideas, but he "didn't like any of them". Partially inspired by Reddit's "Superb owl", the floating QR code, he says, was an original idea that Coinbase had come up with.

Contrary to Armstrong's account, The Martin Agency's CEO Kristen Cavallo commented on the Twitter feed, revealing it was actually inspired by presentations the agency had shown Coinbase. And so, from her side of things, it appears the cryptocurrency exchange worked with the agency, stole its idea, didn't pay it and didn't give it any credit.

Cavallo took to LinkedIn to explain why she didn't want to keep quiet: "The purpose of my response was to stand up for agencies and creatives, and the value we provide," she wrote. "The ad industry is filled with professionals, creative and strategic thinkers who deserve to be respected for their ideas and cleverness."

It's a stance similar to that held by Sean Thompson, founder and creative partner at Who Wot Why. "We should look to protect our industry from this practice; call out the culprits and stand up to them," he argues. "Ideas are our only currency. We must defend our ideas at all costs."

Indeed, the pitch process is an extravagant affair. One that asks for good ideas, yoked in insight, all delivered for free, most of the time. "The fact that agencies meekly give away ideas, as part of the pitch process or an agency realignment, is baffling," Emma de la Fosse, chief creative officer at Digitas UK, says.

Anyone can have an average idea, she explains, but not everyone has the kind of ideas that can launch products or bring down governments.

Brinsley Dresden, partner at Lewis Silkin, says that to protect work he has a very simple pre-pitch letter that he encourages agencies to use. "It essentially says all the ideas that we present to you are also confidential and are only disclosed for the purposes of the pitch and for you to consider whether to appoint us," he explains.

"Copyright only protects the expression of an idea, not the idea itself. One of the key concepts in copyright law is that the expression has to be permanently recorded."

But both Dresden and de la Fosse acknowledge that, particularly in a competitive pitch, agencies are not likely to do that. "Agencies loathe to ask prospective clients in a pitch to sign a piece of paper stating that the ideas created remain the property of the agency," de la Fosse says.

"I've also seen ideas taken by clients as part of the pitch process and given to media companies to produce, as if somehow the idea and the execution can be decoupled."

To ensure creatives get credit for their work, the pitch process is in drastic need of reform.  

Back in January, the BBC's mesmerising stop-motion film for the Winter Olympics was widely commended, earning a Campaign Pick of the Week. 

But soon after its release, it was forced to deny claims of plagiarism made by animation studio This Thing of Ours. The company claimed that the ad “Extreme by nature” bore similarities to its stop-motion animation “Sub surface”, a point that it says it emailed to BBC Marketing, a separate department to BBC Creative. 

Blinkink, the production company that made the ad, said "Sub surface" was not mentioned during the briefing process but acknowledged that it did use it as a reference, alongside many others.

The whole situation begs the question: where do you draw the line between inspiration and imitation? And what makes a good idea original?

"David Lynch compares having ideas to catching fish," Zara Ineson, executive creative director at ODD, says. "You don't make the first, you catch them. In other words, ideas are all around us; originality comes from what you do with them – how you bring them to life."

It's like casting an idea through the prism of a new piece of technology, explains her partner, Gus Mackinnon. A cultural shift or moment can make something familiar feel completely new and surprising again.

Originality is an interesting debate, Steve Aldridge, chief creative officer at Wunderman Thompson UK, adds. "If something is original, by definition, it's never been seen before," he says. "That makes it a really difficult concept to buy and produce. There is a genuine fear of original thinking."

Cynics argue there is no such thing as an original idea anymore. "But I tend to disagree," Aldridge says.

Rather, the adage that there are only seven stories rings true for him. "Even if it's the same starting insight, you can always take your ideas someplace new to give the idea the originality it fully deserves," he says.

But Aldridge highlights how (thanks largely to mobile) new channels have opened up, from NFT technology to web connectivity. "This makes ideas that were previously impossible. More avenues and ways to realise creativity, ultimately mean more ideas," he says.

Agreeing with Aldridge, de la Fosse adds: "It's a conceptually fertile world out there. It's also a much more dynamic one too, which is why creative ideas can no longer be rigid. They need to flex and change accordingly."

Returning to the BBC plagiarism case, the explanation provided, which is a perfectly valid argument, is that the BBC hadn't actually seen the work.

"In the old days, all pitches would go to the post room," Dresden explains. "If you found an unsolicited idea, you don't read it and send it back with a covering letter that reads: 'Thank you very much for your idea, but we do not accept unsolicited ideas.'"

But now with email, the modern equivalent, Dresden says that it's a lot harder to send work back, especially if it is sent to multiple people.

And so it makes it easier for those who pitched the work to claim the similarities, but they need to find proof that the agency actually saw it. However, of those cases that do take the legal route, around 98% will settle out of court, according to Dresden.

So, can you really own any idea? Legally, yes. If something is deemed "unique" and the provenance is permanently recorded, then through copyright rules, it is owned. "In copyright protection, in order to be protected, [the idea] must be original to you. But that simply means not copied," Dresden says.

"It's not a value judgement about the quality of the work, it just means you didn't copy it from anyone else. Over the years, the tests for copyright protection have changed. Basically, it needs to be the intellectual output of the person who created it."