By Sanjeev Kotnala
Brand David (from the Ogilvy stable) took Dentsu to court for a claimed plagiarised creative (‘Light Up the Night’) for Vivo. It is a welcome act for the Indian advertising industry. Dentsu, as expected, has categorically denied the accusation. In an official statement, Dentsu said: “What we created is completely our original work, and we have always maintained this before the Hon’ble Court, as this is the fact”.
No one other than Vivo, Ogilvy and Dentsu knows the facts. I am not raising an accusing finger on the Dentsu. However, this one seems a case of copying an idea completely. I am personally unable to explain it as ‘Creative Coincidence’. I find it impossible to give it the benefit of the doubt though I have no doubt on the integrity of people heading Dentsu.
It was Ogilvy claiming it presented the idea to the client. There is a possibility that the idea came up in a discussion, and the client team pushed the agency to work on it. The agency may not be aware of Ogilvy presenting the script to Vivo. However, when Dentsu says it is an original work, there is no reference to the client being part of it as co-creator. With this, in a way, Dentsu exonerates Vivo of any misdoing.
I expect that in the end such acts will be internally be tracked down to a few individuals with good intent and questionable motives. If it is a case of plagiarism, it can happen with and without the knowledge of management and individuals. Sometimes, people who know the history and remain silent, doing more damage to the industry.
Creative Coincidence And Plagiarism
Creativity is subjective. In the Indian advertising arena, it is loosely protected. Rules do exist, but rarely anyone has taken someone to task. It has helped the disease to spread.
We have protected the acts of creative plagiarism under various excuses. Creative Coincidence, category insights, inspired by and obvious thinking has been some of the excuses we as an industry used to defend it.
Plagiarism And Idea Shopping
The concept of Idea Shopping and calling for pitches is not new. Unsolicited pitches with no obligations have further amplified the problem.
May be it is time for the agencies to get the client to acknowledge the ideas presented. Or to create a service, where ideas presented can be date-marked and kept for future reference. Just like what is done for a novel or a film.
No Excuse For Plagiarism
No excuse is good for plagiarism. Client-agency relationship, timelines, conflict of business, cost consideration or any other reason is purely a post-rationalisation. It can never be acceptable for a client to get the idea executed by an agency, which is not the original creator of the idea unless it is done in mutual agreement.
Creative Coincidence Does Exist
Ones we agree that agencies can come out with the same consumer and category insights. We must agree that the summarisation of expression may use the same words. If we take it further, the execution can be the same.
This defeats the argument that the executions need to be different. However, in this case of Ogilvy, Vivo and Dentsu, it goes to a frame-by-frame comparison. It makes ‘Creative Coincidence’ hard to believe
Pitch Fee Is A No-No Solution
Pitch fee is a non-starter. The industry has seen hungry agencies flocking to a pitch for a client based on a Facebook post.
Some larger and smaller agencies do ask for the pitch fee. The result: they get invited to fewer pitches. No one wants to be in that situation. In this chaotic industry scenario, no one wants to not be considered for pitch.
The pitch fee must be properly understood. It does not give the idea ownership to the client. It is for the effort made by the agency. In no way, is it a compensation for ideas.
There is no point in asking agencies to state the idea fee openly. It will be wrong to expect agencies to pass the idea ownership to the client on payment of an idea fee. Creative ownership, passion and legacy come into play. If we give the client the freedom to execute it with a different agency, we will be weakening the very fundamental part of the business.
Can Agencies Give Their Work A Certificate Of Original Work?
May be the clients and the celebrity or producers to protect their image can ask agencies to provide a certificate of ‘Original Work’ before the campaign is released or approved. That way, the onus will ultimately be on the agency.
Ogilvy Case A Wake-Up Call For The Industry
The Ogilvy case is a wake-up call for the industry. The advertising association and industry bodies need to come together on plagiarism. There is definitely a need to define the process, set rules and guidelines for pitching.
Documented Cases Of Plagiarism
Plagiarism was the reason for Malaysia 4As disqualifying two of Dentsu Utama Kancils winners many years back. Dentsu held its ground and in fact (not ascertained) resigned from the 4As.
Manish Bhatt, Founder Director, Scarecrow Communications accused ‘Jai Jawan Tea ‘ to blatantly plagiarising the much appreciated ‘Bagh Bakri’ tea creative. He once again questioned the uncanny similarity of positioning ‘Go with the Flaw’ with Spykar ‘Flaunt your flaws’.
‘Bang In The Middle’ saw its Jabong positioning ‘Be You’ very similar to a UK-based fashion brand, Sainsbury’s Tu.
Sunny Lite, complained to ASCI against the Aashirvaad Atta brand.
In 2013, many entries in the biggest advertising award (Goafest )were accused of plagiarism.
Plagiarism Raises More Questions.
How do you safeguard your ideas in a pitch?
Who defines what unintentional plagiarism is?
At what level of similarity does plagiarism start?
When along with constrained research methodologies, the agencies have similar consumer insight leading to obvious executions, who will decide if it was plagiarised or a mere creative coincidence?
Is there any other way than the victim agency can seek legal options?
Can industry bodies create an ecosystem where plagiarism is challenged at every stage?
What punishment and sanctions can an industry body impose on erring member – non–member client or agency?
In the past, Philippines’ Department of Tourism ended its partnership with McCann when there were complaints that the ad was similar to a South Africa tourism ad. And it was a rare action by the client.
A Different Question?
Who owns the creative? Most employee contracts give the agency the ownership for all work created and developed by the employee during his or her tenure with the agency belongs to the agency.
What happens when the person moves from one agency to another? Is he or she not expected to use the accumulated expertise? Are they barred from benefiting from the ideas they generated during earlier engagements?
How can you compartmentalis creative ideation?
Industry Must Come Together Against Plagiarism
To set an example, bigger agencies and like-minded organisations must come forward. It is a space where AAAI, IAA, ISA and ASCI could collaborate. The Indian advertising association and industry stalwarts must take a position now. It is not something that can be addressed on an individual agency or client level.
Here Is An Idea Industry Can Support
It is an attempt to create a data bank of presented creative that can be referred by the client, agencies, and if required help, decide the case legally.
1. Advertisers and agencies enrol for the service.
2. Every advertiser and agencies are given a unique code with double authentication.
3. Every advertiser calling for a pitch informs this Idea cell of the pitch. This creates a link that the agencies later use to upload creative presented in the pitch.
4. Advertisers sign an NDA with the pitching agencies. And call not more than five agencies for the pitch.
5. Advertisers pledge not to go with the incumbent agency irrespective of the pitch result. This will ensure that pitch is only called when the client is sure they want to change the agency.
6. Just like any other creative (songs, stories and films), the pitch creative is uploaded by the pitching agency.
7. The client accesses and in a given timeframe certifies that it was the pitch presentation.
8. The pitch presentations are then date-stamped. This date-stamp becomes the reference point for any dispute at a later day.
9. The client pays a fixed fee for the service. The agency pays to keep creative protection alive.
10. Agencies do not participate in a pitch until the client agrees to be part of this body.
11. Only the agency has any future access to the creative.
12. The date-mark creative are protected using Blockchain Technology. The creative with all details is made available in case of plagiarism issue.
13. The agency removes the creative from the watch list whenever they want to do so.
I would love to discuss possibilities with like-minded people and interested industry bodies.