It’s not the first time there have been uncanny resemblances between unsuccessful pitch presentations and the client’s subsequent advertising.
Who: Guardian Newspaper Group and Fallon spaper Group and Fallon
When: December 2001
Guardian Newspaper Group (“GNG”) agreed an out of court settlement of claims by unsuccessful pitching agency Fallon. Having lost the pitch for GNG’s advertising account to rival agency "Mother", Fallon claimed GNG was infringing the agency’s copyright in materials presented by Fallon to GNG as part of the pitching process. They did this, Fallon said, by running ads promoting the up and coming Observer Sports Monthly magazine which, according to Fallon, were absolutely identical, even down to the typeface, to the material presented by Fallon during its unsuccessful pitch. GNG denied liability for copyright infringement, asserting that the pitching process had entailed GNG getting usage rights in all material presented. Fallon settled for a "no admissions" payment of £3000 by GNG to Great Ormond Street Hospital.
Why this matters:
It’s the oldest story in the ad pitch book. Disappointed agency has nose rubbed in it by client using its material for a subsequent campaign through the successful agency. There seems to have been uncertainty in this case as to whether copyright in presented material had passed to GNG. The only way to remove uncertainties like this, and hopefully avoid unseemly rows like this in the process, is to spell the position out in a written pre-pitch agreement. This can be part of the invitation to pitch (perhaps a pitch payment to the agency might be expressed to cover intellectual property rights) or by way of a pre-pitch letter submitted by the pitching agency for the prospective client’s signature before the pitch takes place. Admittedly it might be a difficult call for an agency keen for the business to be sending off legalistic documents for signature before the pitch. On the other hand, the paperwork does not have to be long or complex ( an example is available free in the “Forms” section of this website) and this case shows that such a step could save an awful lot of aggravation later.