KEYNOTE SPEECH DELIVERED BY LANRE ADISA ,MANAGING DIRECTOR OF NOAH’S ARK AT THE PREMIER WORKSHOP ON INTELLECTUAL PROPERTY RIGHTS IN ADVERTISING AND MEDIA ORGANISED BY GEE LAW FIRM AT RADISSON HOTEL,IKEJA LAGOS ON FRIDAY 29TH NOVEMBER ,2019.
Thriving In The World Of IP
Good morning ladies and gentlemen. First, I would like to thank Gee LawFirm and AAAN for organizing this long overdue forum. I would like to thank Nosa in particular for his insightfulness and doggedness in driving this idea that started from a casual conversation around our breakfast table at the last AAAN AGM/Congress in Lekki. I would also like to thank him for successfully setting me up. Otherwise, how do you explain my being called to deliver a keynote address on a legal matter in the midst of so many learned luminaries? My initial reaction was to turn down the request; to save myself the embarrassment of being easily labelled an ignoramus in matters of the law. However, I saw it as a learning opportunity. One thing being in advertising for close to three decades has taught me is neverto give up on any challenge. The joy often comes from being able to confront the peculiarity of every new idea headlong, ignoring the bruises that may come from wrestling with it and focusing more on the outcome of the triumphant idea. So I’ve chosen to focus on what I know as a creative working in the creative sphere, while leaving the legal dimensions of Intellectual Property (IP) to the legal gurus.
If you’ll permit me, I would like to proceed from here with a couple of scenarios and posers.
Andy Warhol, the late famous American pop artist was made popular by his painting of the Campbell Soup cans. He painted all the thirty-two varieties of Campbell Soup cans between November 1961 and April 1962. While some wondered if this could be considered art, these paintings shot Warhol into instant fame as a fine artist, having enjoyed earlier popularity as a commercial illustrator. It’s on record that Andy Warhol’s Campbell Soup paintings commanded a price of $11.7 Million the last time they were sold. I do not know how much the designer of the Campbell Soup label was paid. I also do not know if Warhol paid the owners of Campbell Soup.
The point here is that the creative process often is the same for the commercial and non-commercial artists. Whereas the painter can easily sign off and charge a premium for his work, the commercial artist, working as a graphic designer in an agency or any other establishment, cannot sign off on his work or name his price. He works for a sponsor often called the client. In most instances, he may not bother to know his rights with respect to what he creates.
A big telco calls for a pitch. Almost ten of the best agencies are invited. It was meant to be just a round of pitching. It ended up being two rounds. But that’s not the problem. Your agency scales the first round and is shortlisted for the second round which you eventually lose. A few months down the road, you see one of the ideas you sold in the first round of the pitch being executed. You just take it in good faith, shrug it off and move on.
I’ll be surprised if you’ve spent some years in this business and you haven’t experienced a similar scenario or if you haven’t reacted the same way. The yawning question here is: who owns the ideas prior to the clients engaging the agency? The obvious answer is that they belong to their creator, in this case, the agency. Why do agencies shy away from enforcing their rights? Could this have arisen from the anxiety of agencies to win the pitch, thus throwing their rights and caution to the winds? Or could it just be that we ascribe so much power to clients in general even when they are prospects?
An agency buys the rights to the use of a piece of music from a collection society. A few weeks after exposing the work, the agency gets a notification of infringement from the artiste whose work has been used. All entreaties to the artiste concerning the agency’s adherence to due diligence by going through the collection society are dismissed by the artiste. Considering the fact that the brand in question has already invested a huge sum on a TV commercial using the music, the client agrees to paying the artiste to avoid litigation. In the meantime, the collection society is holding on to the initial payment. Who really owns the right in this instance? Is any party here taking advantage of the client and agency’s vulnerability?
Your agency sells a particular song made popular by a foreign artiste to a prospective client which eventually wins you the business. You go all the way to repurpose the song to launch a campaign. Again, as in Scenario 3A above, you approach a collection society for the rights which are duly given to you for an agreed length of time. After launching your campaign to great acclaim, you receive a notification from another collection society stating that they own the rights to the song in question. You are caught between two collection societies and a client who genuinely can’t understand why they should be so exposed. You wonder why knowing who owns the right to any piece of work should become a guessing game and why you should be tossed here and there by the collection societies.
Your agency buys stock images from one of the biggest names in the business. You use the images for a campaign which wins you an international award. You have duly paid for the stock images but the artist that produced the images accuses you of using his work without acknowledging him. Considering the fact that you’ have paid the stock images company, you wonder why acknowledging the original creator of the images should be of concern to you. However, because you have won an award where people expect some measure of originality with every entry, you face the scrutiny and, perhaps ridicule of your creative community. But are you really at fault as far as rights are concerned?
Guinness launches a global campaign tagged Made Of Black. You see this as a good opportunity for spoofing. You propose a campaign to your bleach producing client to run a Made Of White campaign. The former see this as infringing on their original Made Of Black campaign and are getting set to write you to desist or face litigation. Peace is restored only when their foreign agency sees this as a comic spoof of their campaign; something for the laughsand nothing to lose sleep over. But were you truly infringing on their rights in the first place?When do you cross the line when you’re spoofing?
In its bid to shake the table, a bank embarks on a shading of other banks on social media by parodying their logos and alluding to them in ways that projected it to be in a league above the rest. This naturally led to a big controversy which eventually elicited an apology from the same bank. This raises the issue of ethics and denigration of others. Does the fact that this happened online make it permissible? Aren’t the victims in this case at liberty to protect their reputation and their IP assets as they deem fit?
These scenarios are not in any way exhaustive. They represent the different dimensions of our interactions with issues bordering on IP. As long as we work in the creative industry it is in our best interest to be aware of IP and its different manifestations. It is not to be in a state of perpetual trepidation out of fear of infringement. It is for us to be aware of how IP laws and provisions can protect us as creators. What is obvious in our industry is the lack of adequate knowledge in these matters.
For starters, we are too anxious to engage prospects. We want to win the pitch by all means, we forget to take ownership of our ideas. The reality is that the ideas we generate are ours until we cede the right of ownership via an agreement to the client. As a matter of fact, the ideas that such clients reject are not theirs and we are at liberty to propose such to other clients unless we have any clause barring such in our agreements. It therefore amounts to sheer robbery when a client chooses to execute an idea presented at a pitch without the consent of the agency in question.
What will it take us as a rule to lead pitch presentations with caveats stating our ownership and the implications of any client appropriating such without our permission? My guess is that many of us do not want to come across as “ trouble makers” to our prospects. If we consider the potency of ideas and the transformations brands do experience as a result of such ideas, we may then be able to appreciate the need for the protection of our IP.
Unlike the painter and other non-commercial creatives, we are often at the mercy of the client. I recall our first encounter with a new client’s legal team. When they read out the details of their roles vis-à-vis those of the agency in handling matters of IP where third parties are involved, everything was designed to indemnify the client from all likely negative consequences from third parties.
The only way to avert walking into IP landmines is to be well counselled. It starts with dealing with attorneys who are specialists in IP. The world we live in today is so different from when a couple of us started our careers. Thanks to the overflow of information occasioned by the pervasive power of the Internet, there is no room to hide from any form of encroachment or infringement. Back then, things were so loose and lax many agencies produced jingles fashioned after other people’s work without recourse to seeking permission.
Today, the average man on the street is aware of these matters and is ready to exploit any window you may provide. The first and only time so far I was called to be a witness in a court of law was in a case instituted against a client of ours in my former agency. A lady, who claimed she was referred to me by our client, had played me a couple of jingles she produced unsolicited. I told her, as a policy, we do not receive such ideas from outside parties. She walked out of my office after a not-so friendly encounter. A few months later, the same person sued the client claiming that all the work we had produced, including the work done by the client’s second agency were inspired by what she presented to me. I found it laughable, yet disturbing. The case eventually hit the rocks.
A second instance was that of someone who walked into the agency claiming that a baby we had used for an MTN billboard was hers. She was going to sue us for using the image of her baby without her consent. Unknown to her, the baby in question belonged to one of our team members. This was before the social media era.
Being well counselled is very critical when we consider the fact that in today’s world, content is king. As people who deal in content, where are the opportunities for us to take advantage of our talent without having to depend solely on clients? I wouldn’t know the details of late Uncle TedMukoro’s contract on the Star Shine-Shine campaign. Considering the fact that he created the work as a consultant, it may be safe to imagine that it was done under the same conditions most agencies operate where the client takes absolute control of the idea after paying the agency/consultant. If this had been done by any of today’s content creators, otherwise known as influencers, the story would surely have been different. Understanding the dynamics of IP will help us diversify our portfolio in a way that makes us less reliant on clients. The truth is content lives forever; having control over it allows us to monetize our ideas in a manner that keeps yielding.
As far back as 2012, R/GA, an advertising agency, developed the Nike+ Fuelband which has given birth to today’s plethora of wearables tracking people’s fitness. According to Stefan Olander, Nike’s VP of Digital Sport, the products and services are becoming the marketing. In other words, our potential goes beyond just creating ads.
According to the World Report on Intellectual Properties, also known as Intangible Capital, income from intangibles have continued to be on the increase. A 75% growth was recorded from 2000 to 2014, amounting to a total value of $5.9 trillion in 2014. The highlights of the IP filing activities for 2018 show that China is leading the pack across several parameters, followed by the US. In the same report, South Africa leads other African countries while Nigeria is somewhere close to the bottom of the ranking.
Changing the story for Nigeria will start from us changing our stories in our little corners. We need to do a lot of rethinking. Faced with shrinking budgets and a debilitating fragmentation of our industry, a focus on IP is one way we can expand our business frontier. In September this year, it was announced that Andela will be laying off 250 junior engineers across three countries, including Nigeria. I wonder how many of these junior engineers our industry was able to attract.
My expectation is that this forum will serve to enlighten us as businesses on the different dimensions of IP and how we can conduct our businesses with confidence and clarity coming from our new knowledge. The table has turned. The FMCG behemoths of old have been toppled by the new tech brands. Just check out the latest Interbrand ranking of the world’s biggest brands for an idea of where things stand. R/GA which I referenced above used to have a policy of disrupting itself every nine years. In the face of today’s tech revolution, it now disrupts itself every year. It is imperative on us as players in the creative industry to think different and avail ourselves of the protection and benefits of understanding the dynamics of IP.
In conclusion, I would like AAAN, working in conjunction with Gee Law or any other IP experts, to take another look at the Association’s handbook with the aim of enlightening member agencies on their rights. I will expect this revision of the handbook to state the new rules of engagement as regards handling pitches and onboarding new businesses. I know the challenges this may bring as we have seen with enforcing pitch fees. We cannot do this alone. We need to reach out to ADVAN and work out an MOU or a code of conduct as we may deem fit to make this work well for all parties.
We also need to go beyond the fear of infringement of IP matters which may bring with it litigations. As stated earlier, we need expert advice to be able to reduce such occurrences.
Going back to the Andy Warhol story we started with, my hope is that this gathering will mark the beginning of a change in our story, from being the poor designer of the Campbell Soup can to being smart enough to explore the intricacies of today’s content jungle to earn like Andy Warhol. This is not just a pipe dream. It requires a rethink of our old models. It demands that we enrich our core offering by embracing technology and all its unimaginable possibilities.
On this note, I rest my case. Thank you for your time.
Lagos, 29th November 2019