Creatives Posting Unapproved Advertising Work Online Can Be Dangerous

On May 18^th 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.

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?