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One step ahead

1) If your pitch documents/designs have not been returned with a valid reason for non-selection, send a letter requesting immediate return of your work. You own the intellectual property rights in any material that has been sent on a speculative basis in response to a pitch brief.

2) Include a reminder, if the potential client has signed a confidentiality or intellectual property agreement. Inform them they are not allowed to use any element of your work without permission and payment and include a statement that if any element has or intends to be used without your permission, this may be an infringement of your intellectual property rights.

3) If you have sent a copy of your pitch to your solicitor, professional organisation (or, if you are an ACID member) to the ACID design register, request confirmation regarding the date that your pitch was lodged. This will provide you with valuable independent evidence to substantiate your claim, should you decide to take action.

4) Careful handling is imperative if you discover that elements of your pitch have been used without your permission or payment. Approach the client on an informal basis with caution - beware of making a groundless threat.

5) There is a provision under UK design law, which basically says that if you sue someone for infringing your rights and it turns out they haven't - they may then be able to sue you!

6) If you do have a meeting with a client who you feel may have used your work without payment, do not negotiate a royalty without giving yourself time to make an informed decision. At this stage, you may consider taking legal advice in order to maximise the exploitation of your IP rights.

7) Always keep a record to confirm your understanding of what took place during any meeting following a complaint.

8) If you write to a client regarding an unsuccessful pitch and an alleged infringement of your intellectual property rights, always stick to the facts and head any letter WITHOUT PREJUDICE. Copy in a third party, i.e. your solicitor or trade organisation.

9) If you have to instruct a solicitor to send a letter before action - think carefully about your choice of legal advisor. It is better to consult one with experience in intellectual property (IP). If a solicitor has experience and a proven track record of cases in the marcoms sector, they will understand quickly what you are trying to achieve.

10) Gather together all relevant evidence to substantiate the fact that you believe that your material has been used without permission or payment. In an advertisement, for example, obtain an example of the alleged copy and provide signed and dated evidence of your original. Current design legislation relies on overall impression so even if subsequent work has been changed slightly, it may well still infringe your rights.

Remember
It is always advisable to approach any problem regarding an unsuccessful pitch initially in a positive, professional manner. Before approaching a client, evaluate what has gone wrong:
1) Has the client failed to give you adequate reasons regarding an unsuccessful pitch?
2) Has the client used any of your intellectual property without your permission?
3) Has the client failed to return all elements of your unsuccessful pitch with an undertaking that no aspect will be used without your permission and payment for your work?

Creativity and design = value
It is right to be rewarded for any original work that you produce which is subsequently used for the commercial enhancement of a project by a third party without your permission.

It is wrong and professionally incorrect for a third party to use ANY element of your pitch without permission and free ride on your creative input without payment.

Further Information
To find out more about ACID please call the Membership Helpline on +44 (0)1531 650 476. Alternatively, access www.acid.uk.com or e-mail help@acid.uk.com.

September/October 2010
issue 61
available now