So you’ve been given the opportunity to showcase your creativity, concepts and ideas to a potential new client.  But how can you prevent your materials and ideas being “pinched” and used by the client without you or, even worse, with another agency?
 
Copyright will subsist automatically in any drawings, illustrations and designs that you present to a client and therefore any unauthorised use would amount to copyright infringement however copyright does not protect the ideas or concepts themselves or any straplines.  In any case, you would ideally be able to deter the client from pinching your materials in the first place rather than having to take them to court later.
 
There are some practical steps that agencies can take to help deter clients from doing this and to protect their materials and ideas.  Firstly, always keep clear records of all materials including drafts, the details of who created the materials and the date of creation.  These records should be retained even if you are unsuccessful in the pitch.  This will help to evidence the fact that you were the original creator of the materials in the event of a dispute.
 
Mark each page of your pitch presentation and all accompanying materials with “Confidential. © [Your agency name] [year]”.
 
Where possible, enter into a pre-pitch agreement.  This would take the form of a mutual confidentiality agreement that includes mutual obligations to keep any materials, ideas and concepts exchanged during the pitch process confidential and undertakings from the parties that such materials, ideas and concepts will not be disclosed (other than to specified permitted disclosees such as professional advisors etc).  The fact that the agreement includes mutual obligations will make the agreement more palatable to the client so that they are more likely to agree to sign it.
 
Agencies shouldn’t be worried about presenting such a document to a potential new client. The document doesn’t need to resemble War and Peace – it can be just a couple of pages long.  In any event, it shows the potential client that you attach great value to your ideas and therefore so should they!
 
Sharon Playford is a solicitor with Excello Law and specialises in providing commercial legal advice to communications, design and digital agencies. [email protected]