Who is doing the exploitation?

The copyright article by John Shannon of Grey International (MW December 9) raised a number of serious questions which deserve a serious response.

His article appeared to be all about agencies needing to “combat exploitation” by clients. He talks about agencies being “vulnerable” and “not paid appropriately” and the “need for early action to protect creative work”. Viewed from a client perspective, this looks like a really topsy-turvy world, since many clients feel very exposed to lack of protection by their agency on just the copyright issues referred to here as “an agency problem”.

I agree that one of the best ways to ensure a successful partnership between agency and client is “to address and satisfactorily resolve important issues of copyright and remuneration at the very outset”. The ISBA urges clients and agencies to do so, and not to hide the remuneration and copyright issues. I regret that when agencies pitch for new business, they often try to leave the remuneration discussion until they have been awarded the account – which is the wrong way to go about it. A well-founded business relationship should not be so coy about financial issues.

I have no doubt that Shannon can quote some examples in which an agency may have lost out, when a campaign created in one country is then run out over others without much extra payment. No doubt such cases exist – but they are a tiny proportion of the total and to imply that every agency needs protection is really getting things out of proportion. I accept that Shannon did not write the headline “Copyright move for all to make”, nor is he to blame for the fact that many agencies are trying to introduce special usage rights for themselves with all their clients – but this is the reality.

As Shannon says, let us make sure that all this is discussed openly, early and without any sleight of hand. I have seen a number of recent cases in which a draft agreement prepared by an agency says that the client must pay rights “in line with our normal terms of business”. However, on looking at those terms of business one sees that extra payments have been added without any discussion with client companies, nor with their representative organisation, ISBA. It may amount to sharp practice.

I have also seen many cases in which clients have ended up paying much more for extended usage than should have been necessary, because the agency just failed to make the necessary arrangements at the outset – believing, presumably, that they knew best about what the client would want and would pay for, rather than the client knowing what he wanted. I do not wish to make this into a client/agency battle – but I want to emphasise that there are many ways in which some agencies fail to meet the real needs of their clients in the copyright field.

Let us be clear that the whole area of intellectual property will become more and more important. Nothing is gained by suggesting that all agencies are being exploited in copyright terms, or indeed that all agencies are failing to do what their clients need. Let us focus on Shannon’s recommendation that copyright issues and a fair remuneration package should be addressed and resolved at the outset. This resolution must be a joint one, not one in which “agencies fix copyright and usage rights for their work”, as suggested. While there are a few cases in which all the credit for the idea may rest with the agency, in most cases it is a joint activity in which the agency plays the leading role, but no means the only role.

Clients make a big input by supplying the product, the brief, the money and, in many cases, constructive ideas about how the agency’s original proposals can be improved. Equally, the production company and the TV film director make an important contribution – it is rare for the whole creative idea to be an agency one. For agencies to regard it as “their work” which needs to be defended against “exploitation”, is looking at the subject through the wrong end of the telescope.

Ken Miles

Former director general, ISBA