As the ad ‘Light up the Night with Vivo V17Pro’ lands the brand in controversy, with Ogilvy claiming the idea came from it in a pitch that did not result in business with Vivo, we decode the issue of safe-guarding ideas and whether the industry is open to
non-disclosure agreements
The Ogilvy-Vivo battle where one of the top agencies in the country has taken a top advertiser to court is definitely a first in the history of Indian advertising. In a way, it speaks of coming of age of Indian agencies which have forever spoken about plagiarism at a client level in whispers. While the Ogilvy-Vivo matter is pending in court (the next hearing is on November 22) and the final verdict is yet to be heard, the episode has definitely thrown open the floor for discussions on the need to safeguard an agency’s idea, irrespective of the outcome of
this case.
Prasoon Joshi, CEO & CCO of McCann Worldgroup India, and Chairman McCann Asia Pacific says, “It’s an important decision and would bring much desired clarity for all who take creative ideas for granted and do not acknowledge that at the pitch stage, the agency clearly owns the ideas. Intellectual property rights may be complex to exercise, but the ethics of it should be clear. Being in a creative service industry should not leave any organisation vulnerable to exploitation when it comes to the key asset - creative ideas.”
More and more support poured in for Ogilvy after the matter came to light, more so for taking a stand against a top advertiser, a rather rare occurrence, even globally. Says Saurabh Varma, CEO, Publicis Communications, South Asia, “The industry has to unite and support this bold move. This is a good first step to address a massive problem. Personally, I believe we need to move from being reactive to being pro-active around protecting our ideas, effort and our time. As we move increasingly to a project-based environment, we have to ensure there is a pitch fee for any multi-agency exploration. That is the least we can do as an industry. Publicis Groupe will back any such initiative.”
IDEA-SHOPPING
Tarun Rai, Chairman and Group CEO, Wunderman Thompson, South Asia says, “Plagiarism is an issue in every creative field - be it music, movies or books. Periodically, controversies erupt and the issue gets highlighted. But somehow, our industry has chosen not to rake up such controversies, so far, maybe because it’s difficult to prove or because of the potential of future business from the same client. I do hope that this controversy will make clients more conscious and respect the agencies they have called to the pitch. This also raises the broader issue of current agency remuneration and who should own the IP of the creative campaign. After spending seven years in media and building and owning over 30 IPs, I realise the importance and value of IP ownership.”
Agency heads say advertisers mindlessly calling multiple agencies to pitch for individual projects and agencies succumbing to it is responsible for the current scenario of ‘idea shopping’. Raj Kamble, Founder & Chief Creative Officer, Famous Innovations says, “Usually, I don’t see large clients and global brands doing it, so the Ogilvy-Vivo case was surprising. But it has become commonplace overall. The only way we can fight it is if we all start charging pitch fees. Then the clients will take pitches seriously and have value for our time. It will only happen if everyone does it, but again it comes down to the fact that with such extreme competition, it is easy to compromise ethics and just stay quiet about it because we all have to survive.”
CREATIVE COINCIDENCE
In the advertiser’s defence, when they give a very specific brief, agency ideas are bound to have some overlap. Anshuman Chakravarty, Chief Marketing Officer, Orient Electric, says, “Whenever we give a very precise brief, the ideas we receive from the agencies do sometimes sound very similar. The ideas are similar when it comes to concept, but when it comes to execution, treatments and scripting, the differences are stark. So at an idea level, I am not sure… but yes, if it is an exact copy of the script, it can be branded as plagiarism. But again, you see absolutely similar ads made in a different market where the client is not aware that it is a copy of a western ad. So, those things also happen.”
Basically, advertisers say there is a world of difference between blatant plagiarism and similar inspiration which can come from anywhere. But on many occasions, we have heard of cases when an advertiser likes an idea by X agency but offers the account to Y agency, which agrees to do the work at the cheapest cost, and then asks that agency to work on the idea given by X agency. So, inspiration is a rather grey area. Chakravarty responds to that: “Of course, that is wrong, it is the marketing team’s responsibility to make sure that doesn’t happen. Many a time, we have seen an idea presented by some agency and a similar one by my own agency. My response has been ‘Okay, let’s not do this at all.’ So, you have to take a conscious call. You can’t be benefiting from concepts and work done by others.”
Sudhir Nair, Founder & CEO of 21N78E Creative Labs says, “I don’t think any agency will willingly work on someone else’s idea, and yes there is a 5% chance that two agencies come up with a similar conclusion. The worst thing I have faced so far is that I went and presented a case to a client when there was in fact no pitch happening. The client invited us and we presented our point of view along with very tight strategic documents. A few weeks later, we realized that our documents were taken and converted into a pitch, all our recommendations were now put as part of the pitch document. And did we win the account? No.”
Ajay Kakar, CMO, Aditya Birla Capital Limited, on the other hand says the inspiration and adaptation can happen at both, the client’s end as well as the agency’s end. Kakar explains, “We have a very fluid talent in this industry. So, when any person working on the mandate moves, it is possible that the idea or inspiration goes with him. It could be both a member of an agency team or a client who has seen an idea being presented in the past and happens to just recollect and share this with a new agency while discussing a new campaign. Then you have work which has been rejected by one client which is possibly pitched to another client. Is there a way to stop this from happening? I doubt.”
While what happens in the Ogilvy-Vivo case is best left to the Court to decide, the controversy will go a long way to make the industry realize that ‘stealing ideas’ is a serious matter. It will make every stakeholder within the creative industry think twice before getting ‘inspired’ by another’s idea, simply by instilling a fear of legal consequences. After all, dragging an advertiser or agency to court on the allegation of stolen ideas is something many have wished to do earlier, but few could muster up the courage to actually do so.
Prasoon Joshi
CEO & CCO of McCann Worldgroup India, and Chairman,
McCann Asia Pacific
“It’s an important decision and would bring much desired clarity for all who take creative ideas for granted and do not acknowledge that at the pitch stage, the agency clearly owns the ideas.”
Amer Jaleel
Chairman and Group CCO, Mullen Lowe Lintas Group
“A salute to Ogilvy for standing up for something they believed in. Surely, Vivo will have its reasons for the similarities but we should relook at the entire game of pitches from the opportunity that this gives us.”
Saurabh Varma
CEO, Publicis Communications, South Asia
“Personally I believe we need to move from being reactive to being pro-active around protecting our ideas, effort and our time. We have to ensure there is a pitch fee for any multi-agency exploration.”
Rohit Ohri
Chairman and CEO, FCB India
“A lot of Chinese and South Korean clients are known to go around shopping for ideas; they have no agency loyalty or concept of brand building. Thus I am absolutely delighted with what Ogilvy has done in the Vivo case.”
Tarun Rai
Chairman and Group CEO, Wunderman Thompson, South Asia
“I’m at least happy that this issue of plagiarism has got highlighted in our industry. I do hope that this controversy will make clients more conscious and respect the agencies they have called to the pitch.”
WHAT TRANSPIRED BEHIND THE SCENES…
While the creative industry is united against advertisers ‘stealing ideas’, Vivo, the primary accused and Dentsu, the secondary accused in the Vivo-Ogilvy case, are believed to be arguing in Court that it is a matter of creative coincidence and not blatant plagiarism
What’s interesting in the Ogilvy-Vivo row is that the entire industry, especially the creative folks IMPACT spoke to, seem to have united against advertisers ‘stealing ideas’ even before the Court proceedings are over in the case. To some extent, it even appears like an industry-wide condemnation of the brand that faces Ogilvy’s allegation. However, Vivo is believed to have contested the matter in Court and the next proceedings will be held on November 22, 2019.
Dentsu has so far worked on three Vivo films, the first one being for their S series featuring Sara Ali Khan. The brand is known for having a pitch for each of its films. Sources close to the development have told us that the script Ogilvy had created in 2018 was on a brief for a different phone, but the brand decided to change the product feature they wanted to highlight, so the script did not fly then.
THE SCRIPT STAGE
In June 2019, the brand reportedly asked Dentsu Impact to work on ideas which they did in two rounds, for which they presented 7-8 scripts. In the meantime, the brand also decided to revisit Ogilvy’s script to see if it fitted with the new phone’s low light features. The brief apparently was to think grand, the set-up was night to highlight the low light features and the production scale was supposed to be big, and Aamir Khan was not to have a romantic angle in the ad. Vivo reportedly went with the Dentsu script because of the emotional angle and both had a giant wheel and a carousel horse in it. Incidentally, so does the ‘Oppo Reno2 F: Zoom into Imagination’ ad made for the Pakistan market. Another similarity between the Ogilvy script and final Dentsu ad as per the Court observation is of lights getting switched on the moment the selfie camera pops out. Now, that part is strikingly similar to what happens in ‘Iphone X Studio in your pocket’ and the ‘Huawei P30 Pro Gal Gadot’ ad made for the Western markets. Probably that’s why, Vivo, the primary accused and Dentsu, the secondary accused in the case, are believed to be arguing in Court that it is a matter of creative coincidence and not blatant plagiarism.
Spokespersons of some brands such as Orient Electric and Lenovo that we spoke to said that in case two agencies present strikingly similar scripts, they prefer not to go with either to avoid a problem. The matter has been a raging debate on social media sites, with some claiming that rounds of changes in scripts by clients often transform the end product without agencies knowing where the so-called inspiration is coming from. So, agencies are as much victims in this.
IDEAS DO CONVERGE
There are some others in the industry who feel the matter is just unfortunate. Sudhir Nair, Founder & CEO of 21N78E Creative Labs says, “I personally know the guys at Vivo. I know Jerome Chen and some others reasonably well since my Omnicom Media Group days. They are not the kind of people who would be okay about copying an idea, which is why I was extremely surprised when I heard about this case. It would have been a case of ideas being extremely close to each other and it has happened with us a few times in the past as well. How many different ways can you possibly think of to meet the exact same brief of a client? I have been in several pitches where the client has told us that your idea is very close to what the other agency has suggested. Ideas do converge at some point. Neither do I think an agency as big as Dentsu and the creative folks there would be comfortable with working on someone else’s idea.”
‘NO PLAGIARISM HERE’
Meanwhile, IMPACT spoke to Anand Bhadkamkar, CEO, Dentsu Aegis Network India, who responded to the allegations of plagiarism by Ogilvy, saying, “There is no plagiarism or anything of that sort involved. As we have clarified, the work developed by the team is the original work which was developed independently in interactions with the client.”
Also refuting Ogilvy’s claim, a Vivo spokesperson said, “Vivo’s values are built on strong ethical and contractual foundations. We accord a lot of attention to our work. The matter is sub judice and we shall wait for the law to take its course. However, the allegations are baseless and lack merit. Vivo vehemently denies them and we firmly stand with the procedure of law.”
TO SIGN OR NOT TO SIGN AN NDA?
Experts say there’s need for a legal stamp in the pitch process, and for both agencies and advertisers to sign Non-disclosure Agreements (NDAs)
One of the things the Ogilvy-Vivo controversy has effectively managed to do is ignite a conversation about the need for a legal stamp in the pitch process and not just a one-sided one. It is a well-known fact that agencies are often made to sign a Non-disclosure Agreement (NDA) by advertisers on the brief and data shared, but agencies still don’t follow this practice to also safeguard their own interests and big ideas.
Talking about this, Rahul Mathew, NCD, DDB Mudra Group says, “As an industry, we don’t sign NDAs as often as we should. It may be because advertising as a business has been built a lot on relationships and faith and some of those tenets and beliefs have just carried on. Also the unfortunate thing with trust is that it’s often questioned only after it’s breached. But over the last couple of years, we have started pushing for NDAs in our pitches. Less from the point of view of trust and more from greatly valuing what we create.”
Other agency heads say that they push for an NDA only when they feel that particular advertisers are dubious or have called for frequent pitches in the past months or if they feel they may not exactly have the budget to afford the agency and are just fishing for a big idea from them. Of course, it also depends on hearsay about previous instances concerning a particular advertiser.
Rohit Ohri, Chairman and CEO, FCB India says, “The norm is that whenever we pitch, we put a disclaimer in the presentation that whatever we are showing you cannot be shared, it is a complete property of FCB Ulka or Interface. Also, the flipside is that clients make you sign an NDA but unfortunately they are not willing to sign one from the agency’s side committing that they will not disclose our ideas. So it is not in favour of the agencies. It has to be fair and for that, it is important that the agency’s side is protected as well.”
Responding to that, Amit Tiwari, VP, Marketing, Havells India says, “Signing an NDA, a piece of paper, doesn’t bring any trust into the equation. An agency and client should work together only if there is trust, otherwise the agency should not even pitch for that client’s project. In fact, if an agency feels that a client is window-shopping, I will urge them to just boycott the client. But I don’t believe in signing an NDA. For how many things will you sign an NDA? Okay, I will show you the storyboard, please sign an NDA. I will show you the script, please sign an NDA. It’s humanly not possible. It is not a question of which client is signing an NDA or not, it’s a trust deficit challenge. If I don’t trust an agency, I will not work with them, simple.”
Amer Jaleel, Chairman and Group CCO, Mullen Lowe Lintas Group shares a similar thought, “Yes, we should have copyright and NDAs and legal stuff to throw at each other. But it would be much better to look at credentials, past work, teams, do chemistry meetings and zero down to two agencies at max. That would be fair and less complex, and more productive. And brands will go back to being built, not fought out. Both clients and agencies should grab the opportunity and bring badlao. Competition brings out the worst in me, personally. No I don’t get ugly or dirty, I get complacent. Partnership, on the other hand, brings out the best in me.”
A different point of view comes from Rajesh Ramakrishnan, MD, Perfetti Van Melle, who says, “Yes I am open to signing an NDA but it depends on the clauses. If 80-90% of the script is copied, it is blatant plagiarism but agencies can’t take exclusivity to the idea. For example, no agency can say ‘Pepsi makes you feel young’ is their idea because a gazillion advertisements can be made on that premise, but a precise storyboard with defined characters and plot to that effect is definitely their property. As marketers, you just have to be mindful of that point.”
Another marketer feels that there is absolutely nothing wrong with an agency trying to protect their interests, if a marketer can, why not an agency, Ajay Kakar, CMO, Aditya Birla Capital Limited says, “As a routine clients do ask partners to sign NDAs. Why not the other way, too? Clients should also be happy to sign an NDA with partners, to give them comfort. Why not make it a standard process at any pitch, saying that ‘I am presenting to you, but these are my ideas, and if you don’t select me, you can’t use these ideas anywhere.’ I think they should be doing that.”
Having said that, NDA is a relative deterrent, as you can play around it just as with IPs and copyrights. A senior member of the industry who didn’t wish to be named, explains, “In some cases, you may have copyrighted a line but someone can add one word to it and create a new copyright. A story will have 100 frames. You can’t copyright all frames. Somebody adds one frame in that and it will become as good as new. So, the copyright laws are very fluid. Anyway, for everything, you can’t seek legal recourse, you present 20 ideas in a month, what all will you go around copyrighting? So idea theft happens all the time in the industry.”
However, Raj Kamble of Famous Innovations asks why not sign NDAs after all? “We share a Rs 1 cr TVC idea with 10 different directors just like that and Rs 3 cr Bollywood movie writers sign 100 NDAs before they share the script with anyone. I don’t understand why we haven’t been doing it all along. Again, it will become a practice only if all of us stick to it. Only then will your idea not become the brief for another agency.”
Basically, all these years, client-agency relationships have survived on mutual trust, even if it has been skewed in favour of advertisers who make agencies sign NDAs while agencies have been banking on good faith. Marketers and advertisers say this faith wavers when it is project-based work where clients are flitting from agency to agency, as opposed to the retainership model. Also, at any given point, 7-8 agencies are competing to get a particular advertiser’s work; in most cases, without pitch fees. Advertisers like Vivo and Netflix are believed to give agencies a pitch fee, while Taproot Dentsu and Creativeland Asia are believed to be amongst the few agencies that actively demand a pitch fee for the efforts put in. However, paying a pitch fee also doesn’t mean the advertiser owns the idea; it is just to ensure that they take agencies seriously and don’t invite the whole world just because it is a free lunch.
Advertisers like Orient and Lenovo claim that the NDAs they make agencies sign protect the rights of both the client as well as the agency, and are mutually respectful. Amit Doshi, CMO, Lenovo India, a brand which has partnered Ogilvy for more than five years, says, “Such problems arise largely due to projects, where the loyalty on both sides is weak. While it is okay to have one-off projects, the system of getting multiple agencies on board, one for each project, is risky. When you are in a retainership, both members are secure, and can open up to each other. If an idea suggested by either of the partners doesn’t seem fit at a certain point, they can mutually agree to shelve it or keep it for later. Retainerships allow trust to grow.”
Experts argue that non-disclosure agreements and copyrights only act as legal deterrents; a moral fibre also is needed in equal measure and for that, it is up to both parties to operate in the right realm of integrity and ethical standards, but it is easier said than done.
Offering a solution, Amer Jaleel says, “There are too many issues around copyright. Whose idea is it? Why when a client moves on with the line given by an agency should the agency not receive royalty for use of that line, etc.? It’s very complex and calls for a much wider and deeper debate. For now, if we can make the pitch process simpler, cleaner and more efficient and fair to all concerned, that’s all we should aim for. I think copyright overall is a bigger conversation. I don’t think it’s practical to get that into pitches. However, we can redesign the pitch process which I think is in crying need of evolution and progress. We should protect against plagiarism in other legal ways about which probably the industry bodies can come together.”
Industry bodies are also rising to the occasion. Rohit Ohri, Chairman and CEO, FCB India says, “I’m leading an AAAI initiative to create a copyright solution for ideas shared by creative agencies with clients at pitches. We started work on this six months ago. The Executive Committee has approved the framework and I’m currently working with agency heads to fine-tune it. This initiative will go a long way in protecting the intellectual property of creative agencies. We are hoping to go live by the end of this year.”
It is ironical that the creative industry, which is in the business of ideas, has still not thought of an idea to safeguard its interests. This case by Ogilvy is only a beginning and a loud statement that ownership of ideas cannot be treated lightly. At this stage, one can only hope that this controversy goes a long way in helping agencies get their due and much-needed respect from advertisers, who in turn will find more reliable and secure partners to work with.
