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Advice, please: how do I protect my ideas?
Last week, I was invited to pitch for the publicity and PR for an upcoming product launch.
As is my habit, I did my homework: I researched the company and its marketplace, examined what they were already doing with publicity and PR and compared it with what else they might be doing as well or instead. I spent some time exploring their website and phoned the business development manager to get some insight into their perceived publicity and PR needs and wants.
I then wrote up a comprehensive set of initial proposals and suggestions, including “optional extras”, cost estimates and a timetable for delivery. I emailed these proposals and also had a set of hard copies bound and posted in advance of a meeting arranged for them to ask questions and clarify points.
The meeting seemed to go well. They were very complimentary about the thoroughness and scope of my proposals.
But when I got back to my desk, there was an email waiting for me that said, in essence: Don’t call us, we’ll call you if and when we feel the need.
That in itself doesn’t bother me. No-one ever won every bit of business they went after. Anyone who’s ever tendered for some business knows the odds of getting it are stacked against.
No, what bothers me is that these people now have my comprehensive proposals … which they said they were impressed by… and what’s to stop them taking my proposals and just doing it for themselves? Or getting another PR company to do it for them?
I slap copyright © all over my documents but we all know that merely protects the physical content from being plagiarised. It can’t and doesn’t prevent someone nicking the ideas described by the physical content.
Apart from that, researching, writing and presenting my proposals report took a chunk of my time, effort, energy, resources and knowledge, so it has a value. It’s worth something. And now this company has got it for free.
What do others do to protect their intellectual copyright in circumstances like these? How much time, effort, energy and resources are you prepared to invest in a speculative bid for business?
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Steven Swift, Mobile Website Agent at Yorkshire Marketing Business, Wakefield:
If the company that request the proposal in the first place obviously showed keen interest, right. So why not agree a kind of upfront down payment. If they refuse it may be showing their true colours or really intentions, before you spend time writting up your proposal. If they pay yet still take things no further you would have could something rather than nothing at all. If people have invest some amount of money they are more serious and more likely to see their initial interest through to completion. You get paudthe full amount for the excellent work provided and they get all the benefits of hiring you in the forst instance. You should never be afraid to ask for money. Like you said yourself, you won’t win ever bit of business tendered for.
David Emslie, effective networking and Marketing and using LinkedIn as a marketing channel, Leeds:
I agree with Steven, some form of upfront fee shows their comittment to using your services and also recognises the value of the preparatory work you will do.
Andy Gambles, Internet Consultant. York:
Some may be unwilling to pay up front. However you can have an agreement drawn up that protects your rights.
No expert but having had similar done I would anticipate it would cost no more than £500 if you keep it simple.
On the basis that you will present your ideas. If those ideas are utilised you have the right to charge them.
The other main point is learning to differentiate the sales and marketing process from the consulting process. I often merged these two and often lost out. It is difficult when you are selling non-tangible advice.
If you are telling them something of value then you should be charging for it.
Lisa Grunwell, business development manager, Halifax:
This sounds like you did everything possible to win the deal. I would maybe in future just present your product on the day, there’s now way I would leave my clients with all my ideas and basically a business plan that you have prepared for them. Really sounds like there just going to steal your ideas and implement them themselves. I would just ensure that any pre presentation documentation you send in future just outlines the benefits of the proposal you will be recommending to them. It just means that your presentation is going to have to be very comprehensive and Q&A very precise. Hope this helps.
David Guerrero, Owner at Marketing Consulting, New York City:
Im very interested in what others have to say on this topic. The same thing happened to me one time, where the client said no and I turn around and see my ideas being implemented by them, but then again that might just be the cost of doing business.
Nick White, IP Consultant and Patent Attorney:
Philip, I agree with Andy’s comments. Difficult area to pitch without giving them the whole show. The pitch is you. If they want detailed proposals that’s not a pitch.
Also, you are absolutely right that what you have spent hard work on is protected (weakly) by copyright. You would be surprised what is protected by copyright. Your “performance” at the pitch is a copyright work. I would write to the company concerned thank them for considering your proposal and sorry they will not be using your proposal, advise them that you have copyright in what you provided to them and ask them to return all original copies of your presentation along with supporting documents and confirming that no copies have been made and that they will not utilise any of your proposal without your prior approval.
As Andy says having a basic agreement is useful if only to set out the criteria for the pitch and how you are prepared to engage. As one example it may include simply reference to numbered pitch documents that are returned without copying to you within so many days of the pitch. In using a basic agreement process you are testing out their willingness to respect your intellectual property. If they get indignant explain why you have this and that you have been ripped off in the past. I can’t see any reasonable company refusing to accept basic terms that respect your rights.
In my area in the past I have been involved in bid proposals that have cost upwards of £50k if you costed them accurately. We got so adept at judging the cost v benefit that we turned down many more offers to pitch than we accepted much to the consternation of some potential customers! We did not suffer for it.
Find an IP solicitor with real world copyright experience and get some coaching on how to best protect yourself with agreements and your behaviour to minimise risks. The risks are never zero!
Matthew Morton, Director at legal firm, York:
Hi Philip, I would be happy to help you out with a non-disclosure agreement (NDA) so that you can protect yourself in future. It would also be worth us having a discussion about other ways you can protect your IP, which I can assist you with. Thanks. Matthew
Rebecca Parsley, media & communications consultant, Harrogate:
We’ve had the same issue, Philip – and had the bitter experience of seeing the prospective client gain considerable publicity with our ideas which they have then chosen to implement themselves with the help of a freelance consultant. Grrrr!
Our policy now is to charge if we’re asked to produce an in-depth proposal that contains specific campaigns and ideas, the cost of which is then deducted from any work that is agreed. (One additional lesson we’ve learned is to have something in writing that you ask them to sign; there was one particularly memorable occasion when somebody agreed to the fee, we did the work and they (and their colleague who had been present) then denied all knowledge and said they’d never have asked us to do the proposal if they knew they had to pay for it. Oh yes – and they kept the ideas……)
If it’s a general pitch for an account, we have taken examples of the company’s activities and demonstrated what we would have done had we been working for them at that time, so we’re not necessarily giving anything away.
Hope this helps.
Peter Ramsden, sales trainer, Bradford:
There are legal ways you can protect your intellectual property and there are ways in which you can protect your ideas by how you manage the business relationship.
I am not a lawyer so would not try to offer advice but copyright and pre disclosure agreements might be worth looking into.
I am often asked to enter into discussion about taking a standard course and tailoring to client requirements. I see this as billable work and ask for commitment before we take time to find a workable programme.
Give them a brief outline of how you work and the typical outcomes that will happen as part of your delivery of any plan. However any work done to create a workable plan that is tailored and specific to their needs is chargeable. This makes it clear to client that it is your expertise that they are engaging and there is a fee for this.
How you take into account any payments for pre-work into any costings for future work is part of the ‘negotiation; required to get the sale. You could totally discount it in the event of them totally engaging your services but that is between to you and client.
Rob Lucas, Owner, computer services provider, Peterborough:
Hi Phillip, I too have been down this road with “new” clients and I have been in situations where they actually did use my research and designs to implement an IT solution I developed.
The way I get around this now is by asking the company to sign a disclaimer (basically a Confidentiality Agreement) before accepting my proposal & designs. It states the terms & conditions of viewing them and what should happen to them afterwards. In the event of the bid failing they should be returned or destroyed without copies being made, and as this is a contractual agreement signed by an authorised person you have given yourself a level of protection that you can then use if they have broken your agreement.
Andrew Mathieson, Director of Projects, London:
I know you guys work in a different field to me, but similar to your experience I have found that that after putting together a package and handing it over all bound and ready, that our work is used with another company that is not even capable of carrying out this pre
tender process. What we have since learnt is that the Chinese only hand over a table of content and never leave any documents out of their sight. We have adopted this approach and have identified early those that have the intonation of using us. It has not lost us work, it’s work that was never there in the first place. This has to be used by us as we are talking about large amounts of money and time used in resourcing such projects. I am not sure if you can use this same strategy, but I feel what you have experienced.
Gary Deeter, Senior Director of Marketing, Columbus, Ohio:
Know your clients. fine out about there bussiness, if they are intrested in .Give small idea samples. If they want more , it not free!!! Seal , the deal !!!!
Jane Ellison-Bates, Managing Director, marketing company, Bradford:
Yep, I have had my fingers burned like this on more than one occasion too. I’m still arguing the toss with one ‘prospective’ client dating back to 2010 – I’m determined to get paid for the strategic marketing plan I produced for them!
Nick White:
I have been ripped off too usually just plain old non-payment of invoices. Do you notice one thing in common with all of these?
None of us would probably be prepared to name and shame. Very tricky. I admire your tenacity Jane.
One for the lawyers! I wonder if the trick is to have basic pitch agreement that allows you to invoice if they “use” any of your proposal? Trying to get a rip-off merchant to agree to be invoiced after the event is difficult to say the least. If you have a basic pitch agreement and then invoice after the event even though you do not have specific instructions then perhaps there is more leverage? It would be difficult for the rip-off merchant to show the court they did not use your plan or work product and that the invoice was not justified given the agreement?
Eva Montgomery, Technical Marketing Expert, Chicago:
Good question, I recently had a client pay me for my initial analysis. I included my findings, recommendations and cost estimates for future work in the report. It turns out after weeks of work and glowing feedback on the value of the ideas presented, the main decision maker within the company doesn’t like to work with outside consultants and they decided to implement the solutions themselves. Even though I got paid a little bit, it wasn’t worth anywhere near the amount of time I spent on it.
Lesson learned: ask more qualifying questions before taking on such a project, besides typical demographics, do they normally work with outside consultants? Do they have a budget, etc.
Mark Ashdown, manufacturing group, Bradford:
Copyright and trademark everything you do, it is inexpensive and can be quite an earner, as the world is full of plagarists.
Regina Patterson, Marketing & Web Content Consultant, Grand Rapids, Michigan:
Couple of notes:
-you can have them pay for your initial analysis as Eva stated
-next time you pitch, pitch with what’s wrong and how you can help citing a few examples and maybe historical evidence of success. However, don’t give them the majority of the solutions. Help them see what’s wrong and why they need you.
-don’t give them a physical copy of the full analysis until after they have signed a contract
Cristiano Dornelles, Diretor – Consultor de Projetos, Porto Alegre, Brazil:
Unfortunately, the Internet has facilitated the work of dissemination. But the downside is that it has capacity to disseminate information and not actual copies. The most important fact is perhaps our understanding of what really is the truth. Often believe that there are truths but there are no absolute truths. Ideas may also arise moments or collective action makes it difficult to check the point of origin. Be plagiarism or not depends on evaluating.
Amanda P., Marketing & Design, Hull:
We have supplied concepts for a prospect client only to be told that the project is on hold. Should we ask for them back?
Nick White, IP Consultant and Patent Attorney, United Kingdom:
@Jane, Sorry I don’t have a canned agreement.
@Amanda, I would. If they need to revisit the decision then they can come back to you.
David Emslie, effective networking and Marketing, Leeds:
Amanda, Yes I would definitely ask for them back. Firstly, if you haven’t already got some form of legal agreement / Confidentiality agreement in place, then I would send them a simple letter placing on record that the design work that you already carried out remains your copyright. Copyright is only transferred to the client when the appropriate fees have been paid and some lawyers would argue that even then the copyright would still rest with the originating writer / artist / designer. Agency terms usually include a clause about this.
If they resist, ask why. If “Fred hasn’t seen them yet” then ask for a meeting to see Fred with the concepts. If “we might go ahead in 6 months” ask for a meeting date in 5 months to review the position, and agree to bring back the concepts at that stage.
Jane Ellison-Bates, Managing Director, Marketing agency Bradford:
@Amanda. Yep, I have had that one too, on more than one occasion. Think I must have MUG tattooed on my forehead. Getting a lot more savvy (cynical?) now though. Went to a new client pitch yesterday and have already told them that I won’t give detailed proposals until an agreement is in place. Gave them lots to think about just from the meeting but I need to see commitment from them next, I think.
Richard Hamer, Owner, communications consultancy, Leeds:
… And as for clients getting rid of you after a month and then using your press release template. Why can’t we name and shame?