On May 18th AdWeek posted a very interesting, and
perhaps important, article, How Agencies Are Cracking Down on Creatives
Who Post Unapproved Ads. This
is an issue that bears more thought on the part of ad agencies and its
employees.
Traditionally, creative people have put together portfolios
of their best work, which includes both commercials and digital content. (Account people used to do that as well, but that is a different story.) These portfolios are published on websites
with easy access for prospective employers and, in some cases, the general
public. Art directors, copywriters and
producers have always had two choices with their portfolios. They can post the
approved and final versions or they can post work which they consider superior, but
which may not have been approved, like a spec ad for a new business pitch or
what has always been known as “the agency cut.”
This was never an issue until the internet made work accessible
to everyone, including clients.
The fact of the matter is that the work was most likely
created under contract for a client and therefore the client owns the work. Consequently, publishing it is a violation of
copyright law. It becomes a bigger issue
if the work finds its way online in public forums. The AdWeek article cited a couple
of notable cases where this has happened.
Clearly both the agency and the creator are liable because they are
posting work which does not belong to them.
Should this be so?
One could argue it several ways.
If an agency version of an ad is published on-line, it may
be a violation of law (or at least of a client contract). But does it really do the company harm? I think not.
First, people who are looking at it will probably pay full attention to
it – more so than if they were casually looking at the tube or screen, so there
is a client benefit. It may be a more
effective communication than the approved version. It can even help the client
by gaining more attention to it, without so much as a penny spent on it.
This is something production companies have known for years,
which is why directors reels are filled with extended director’s cuts or
alternate versions that are entirely re-cut or re-scored. Just as directors do this to put themselves
and their work in the best light, creative people to do the same.
In the current creative climate, the best work often doesn’t
make it through the process, but whatever work is finished, the client paid for
and owns. If the unapproved work does
not align with the brand or even the marketer’s vision of the brand, the
marketer has a valid case against the agency and its team. We all know that edgy print headlines are often not
approved by clients, despite the fact that they may be better and more
effective. This work often makes it into
the portfolio, but it rarely, that I know of, causes a kerfuffle.
I am entirely sympathetic
to the need for creative people to post spec work that they believe shows their
skills in the best light. Many creatives have been hired, not because of their
approved work, but because of the spec work in their portfolios.
All this said, few creatives ever truly think about legal
ownership or intellectual property. They believe that the work is theirs since
they are the creators. They rarely
consider the consequences since the posting is purely selfish (with good
reason) to show off their creative skills.
I wish I could agree with David Lubars’ assertion in the
article that agencies which fight for the best work will always get it approved. He was quoted in the article as saying, “Do
the brilliant thing for the client, and then that is what runs and that’s what
you enter inn shows. It’s that simple
and that challenging.”
We all know that it doesn’t always work that way.
We all know that BBDO would often produce four or five spots for the Super Bowl before selecting the one that would run. Those creatives did sell great work to the client, but, often only one spot was approved, the others may have found their way into a portfolio or be saved to run at another time. And, frankly, every creative person is not so lucky as to have a champion as strong as David Lubars to fight for their work.
We all know that BBDO would often produce four or five spots for the Super Bowl before selecting the one that would run. Those creatives did sell great work to the client, but, often only one spot was approved, the others may have found their way into a portfolio or be saved to run at another time. And, frankly, every creative person is not so lucky as to have a champion as strong as David Lubars to fight for their work.
So what should be done about posting unapproved ads? Should creative people throw caution to the
wind? Should clients ignore it unless
the work reveals a confidentiality or otherwise hurts the brand? Should agencies turn a blind eye? In this litigious age, when procurement and
legal departments are looking for every penny they can get, creatives have to
weigh the benefits versus the risks of posting unapproved work on line.
What do you think?