22/05/2024 8:58 PM


Enjoy Fashion

A small agency’s claim of ‘stolen’ work points to a larger industry issue

Vieth told Ad Age the brand approached multiple agencies with an RFP that already had ideas for a yurt or log cabin pop-up attached and that “any similarity to other proposals is likely due to the specs we included in the RFP and the consistent visual nature of a Swede Hut and yurt style structure.”

While Vieth declined to name the agency that created the activation, he offered an anonymous quote from the agency: “Regarding the Swede Hut project, at no point during the RFP or design process was any creative concepts or visual inspiration shared with our design team from the Laird Superfood team. We were provided with an RFP that outlined the project scope and estimated budget for the project.”

The true story of what went on between this client and Starch, an experiential, retail launch and brand design shop that has worked for clients like Adidas, Coca-Cola and Vans, isn’t fully known—Ball was unable to comment given “anticipation of litigation.” But the issue of agencies not getting paid for their pitch ideas is all too familiar in the industry.

“This is a problem we are all very aware of, but never discuss,” said Ball. “You would be amazed at how many agencies and individuals have reached out to express their frustrations with this issue, how many times their work has been used, and how they felt they have no recourse. Individuals and companies alike have stated they are afraid to step forward when this happens to them and sue, and with good reason.”

A longstanding issue

Ownership of work and fair compensation has been a sore point for the industry for decades. “This has gone on for as long as I can remember,” said Nancy Hill, founder of consultant Media Sherpas and president of the 4A’s for nearly a decade before departing in 2017. Last July, in fact, Ad Age spoke to 15 agency executives about bad practices they have seen during RFPs which included agencies being ghosted, abnormally long pitches, faceless Zoom screens during pitches, and uncompensated work after a pitch. 

“In the old days, since you can’t rely on trademarking your work but you can protect your work as your own intellectual property, we would do things like mail a copy of the presentation to ourselves and not open that presentation so that you could show the date because a postmark is a legal document,” Hill said. “But things have changed dramatically with the advent of digital clients. Clients will try to say that there’s no way to protect your intellectual property in a pitch, because if there are four agencies, chances are that two will show up with a similar idea.”

Unpaid vs. Paid RFPs

For agencies, the pitch process can be a damned-if-you-do-and-damned-if-you-don’t situation. Consultants say that if a shop does a pitch for free, the work can’t be stolen. But when agencies are paid for a pitch, the compensation is often too meager.

“Unpaid RFPs by leading marketers is the fairest way to manage the creative agency’s IP,” said Matt Ryan, CEO of Roth Ryan Hayes, an agency search firm. “By not paying, the marketer does not have the right to use the presented material without compensating the agency. Paid RFPs very rarely compensate the agency fairly for the work, and because of that they are even more unfair.” Ryan also admits he has heard of “horror stories” of marketers trying to get “something for nothing.”

Agencies are speaking up. The rule of thumb that Mojo Supermarket operates by, and posts prominently on its website: “We don’t work for free.”

“Everyone assumes that we only do paid pitches, but it’s actually the opposite,” Mo Said, founder of Mojo Supermarket said. “We never take money for a pitch. We only do unpaid pitches, because if you pay me $20,000 for a pitch and I’m giving you all these ideas, they’re worth a lot more than that $20,000. I’m hoping that I will get your account and I will get to work on it, but we believe in our ideas so much that we never take a paid pitch. We usually turn that fee down just so we retain ownership of all concepts.”

Said noted that protecting its ideas has led to some of Mojo’s best work. One example is its 2020 effort to highlight the gender disparity at the Oscars, given that only one woman had ever won for best director amid five female nominations in the Awards’ 92-year history. In “Give Her A Break,” the agency hacked commercials in Oscar’s online broadcast, replacing them with female-directed films.

“The technology that we invented to hack the Oscars was a piece of an idea that we had pitched [to a client] before, and it didn’t work and we were like, ‘Okay, we’re going to develop this idea,’” said Said.