Case Study- Client Reconsiders a “Non-Negotiable” RFP IP Ownership Provision

Recently our agency was included in an RFP for a national advertiser.  One of the conditions in the RFP required the agency to relinquish its ownership rights of any work presented in exchange for a $5,000 stipend. We advised the advertiser that we wished to retain the rights to our work and we would decline the $5,000 stipend.  The advertiser responded that the condition was non-negotiable and if we did not agree to it we would be excluded from the review.

 As a matter of policy we will not give up our ownership rights to intellectual property for anything less than full payment for the work. 

 We went back to the advertiser and explained that we were a signatory to a letter from the 4A’s to search consultants asking that ownership not be a required when an agency is asked to provide spec work.  We provided the advertiser with a copy of the 4A’s position paper which provides a clear rationale for the reason for and fairness of the policy. 

The following is the advertiser’s response:

“As I said on Friday, we really appreciate you making your position known on the issue of ownership.  It helped to broaden our perspective on the issue.  Our thought has always been that we have such high standards as a company; we would never harm potential partners by doing something so unethical as using work that we did not fairly and equitably pay for, so we have always been most concerned about potential harm to the brand if we did not retain ownership.

 But, in reading your note, it became obvious that all potential clients may not adhere to our same standards.  So, in the spirit of partnership, we have revised the negotiation portion of our RFP.  It is similar to the language you inserted  but just written in general terms so it that can apply across the RFP to all agencies.”

 This is a case of a non-negotiable really being negotiable when supported by a rational and fair position.  The 4A’s position paper was very valuable. 

Managing Partner; 4A Member Agency

  1. tomfinneran says:

    Re: IP Ownership

    4A has heard of a number of instances where agencies have been successful in calmly and thoughtfully “pushing back” when the prospect “insists” on owning all IP. Your agency should explain to the prospect why it is important (and fair) for the agency to preserve ownership of its new business ideas and work product –and—let the prospective client know that their rights to use work product that they develop can also be protected.

    To assist you in new business IP discussions with prospects there are tools available from the 4A that were used by the agency that submitted the “Non-Negotiable” case study post. The Guidance section of Review Central includes:

    –4A Committee Advocates Agency New Business IP Protection.
    The new business committee letter to search consultants advocating protection of agency I.P. developed during the review process

    –The New Business Tool Kit contains best practice guidance including position papers related to protecting agency new business I.P.:
    ….Ownership of Agency Ideas, Plans and Work Developed During the New Business Process
    ….Agency Search Agreements

    Tom Finneran
    4A Agency Management Services

  2. Congrats on what seems to be a successful push-back. Despite their “no” the first time, you stuck to your guns. Bravo. And the 4A’s is in a great position to provide the industry with the ammo needed.

    One has to wonder how many clients would be willing to change their policy. Perhaps the client deserves some kudos here, too. The practice certainly suggests they could be a good partner.

    Respectfully,

    Steve Congdon
    (agency-only new biz consultant)
    Thunderclap Consulting Group

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