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June 15th, 2003
Doing a Pitch? Who Owns the Ideas?
A jury in Michigan sent shock waves through the advertising industry earlier this month when it awarded more than thirty million dollars to two men who alleged that Taco Bell stole from them the idea of using a Chihuahua in advertising.
The plaintiffs claimed that they pitched to Taco Bell the idea of using a "Psycho Chihuahua" character. Taco Bell denied that it stole their ideas, and claimed that its advertising agency, TBWA\Chiat\Day, came up with the idea of using a Chihuahua for its now-celebrated campaign on its own.
Remarkably, the jury found for the plaintiffs, apparently deciding that there was an "implied" contract that required Taco Bell to pay the plaintiffs for their ideas. Taco Bell said that it plans to appeal the decision.
Every day, advertising agencies, production companies, and other creatives are "giving away" their ideas in pitches to potential clients in the hopes of winning new business. The problem is that you don’t always win the business, and sometimes the winning team ends up producing something that seems awfully like it was based on the ideas that you previously presented.
So, when are you entitled to compensation for the ideas presented in a pitch?
Idea vs. Expression
Copyright law doesn’t protect ideas. It only protects the particular original expression of those ideas, once they are fixed in tangible form. But figuring out the difference between the "idea" and the "expression" isn’t easy.
The idea is generally the core creative concept, reduced to its most basic and abstract elements. For example, the concept of a commercial about a man enjoying his new deodorant soap in the shower is just an idea, not likely to be protected by copyright, and anyone should be free to use it.
The creative elements that naturally flow from the idea -- a shower, a stream of water, and a bar of soap, for example -- will most likely be considered to be just part of that idea, and as a result are also not protected by copyright.
The specific choices that creatives make about how to execute the concept -- such as the dialogue, the new design painted onto the shower curtain, lighting the set in a particular way, and the camera angles -- are more likely to be considered the "expression" of the idea, protected by copyright.
Under copyright law, then, the specific, fleshed-out executions presented in a pitch may be protected, but the core ideas are generally fair game for anyone to use.
Protecting ideas by contract
A simple way to avoid a dispute about the ideas presented in a pitch is to agree up front with the client about who will have the right to use the ideas that are presented, and to put the terms of that agreement in writing.
Without a written contract, it’s going to be difficult -- and in many cases impossible -- to get compensation for your ideas. Although the Taco Bell plaintiffs were apparently able to persuade a jury that there was an "implied" contract, that was a long shot, taking years of litigation, and the appeals are only just beginning.
This article first appeared in the June 2003 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
Other Published Articles
The California Consumer Privacy Ac is not Y2K 2.0
The Los Angeles & San Francisco Daily Journal published Tanya Forsheit’s article “The California Consumer Privacy Ac is not Y2K 2.0.” The article discusses the background of the CCPA and an overview of the challenges organizations face with CCPA compliance. View Article
February 6 2020
A Red Line at Last: ABA Formal Opinion 489 (2019)
The American Bar Association’s Professional Liability Litigation Committee published Ronald C. Minkoff's article “A Red Line at Last: ABA Formal Opinion 489 (2019).” The article discusses the December 2019 Formal Opinion by the ABA Standing Committee on Ethics and Professional Responsibility prohibiting anticompetitive practices by law firms seeking to discourage partners from leaving. (Behind paywall) View Article
February 5 2020
Media Law International: Rules on Influencer Advertising and FTC’s Guidance on Disclosure
Media Law International published Hannah Taylor’s article “Rules on Influencer Advertising and FTC’s Guidance on Disclosure.” View Article
December 31 2019