I have had a little saying framed and hung by my desk for the past 20 years. It’s attributed to Rudyard Kipling and it goes like this: “They copied all they could copy…but they couldn’t copy my mind. So I left them sweating and stealing a year and a half behind.” I usually quote that to clients who complain that someone is using their advertising ideas. If you spend all of your energy trying to chase idea thieves, you often lose ground and you let the competition know they are getting to you. Besides, a clever thief can often modify your original idea enough to squeak by plagiarism complaints.
There are very few original ideas in the world and most advertising/promotional concepts are refried and rehashed in some form or another. Almost every retailer in every retail category chases the competition at some point. Just as you pay attention to your competitor’s ads when that competitor is gaining market share or attention, there are other retailers looking at your ideas. It’s fair play and after all, once you print or air your ads they are public domain…right? To some extent that is true. Especially if the idea you are using has been used by others before.
That being said, certain concepts, slogans, logos and written works can be protected with simple, relatively inexpensive measures thanks to U.S. Copyright laws. To better understand the protections afforded by these laws, go to www.copyright.gov You’ll find easy to understand explanations of what can be copyrighted, fees for registration, etc.
Here are the two most important things you need to know about copyrighted material. First…what can you copyright? You can copyright original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Of course that includes the original scripts that you write for ad copy. You cannot copyright facts, ideas, systems or methods of operation. Slogans and mottos are a gray area. In some instances you might be able to obtain copyright protection for a group of descriptive words you may use as a tag line, but there has to be enough substance in that slogan to define it as an original literary or artistic work. For instance, our agency has international copyright protection for the slogan: “If you want to pay more (for an automobile), that’s your business. If you want to pay less, that’s our business.” Often you can gain property protection for short slogans, logos and mottos through U.S. Trademark and Servicemark registration laws. The second most important thing you should know about copyright protection is that YOU DO NOT NEED TO FILE A FORMAL REGISTRATION WITH THE COPYRIGHT OFFICE in order to have your work protected. If you prepare an original literary or artistic work you are afforded protection by simply placing the circled ‘c’ in a prominent location with your work, who it was created (or owned) by and the creation date. You gain further protection by actually publishing the work although that is not absolutely necessary for protection.
If you (or your agency) creates original advertising ideas specifically for your dealership, you should make sure the copyright ‘c’ with ownership and creation date is somewhere in that ad. The copyright ‘c’ should also be on the copy or design that you place in your files with the first date of publication indicated.
If you use an advertising agency, you must reach an agreement as to the ownership of the work you are protecting. If the agency has created the work (and copyrighted it) prior to a relationship with you, consider asking for unlimited license use of that material, especially if it is intended to be a slogan or long lasting campaign. Otherwise you may have to stop using the material if you disassociate yourself with the agency who owns copyright to the material.
If you come up with a really exceptional idea, something you think may likely be ‘borrowed’ by dealers in other markets (like those in your ’20 group’) you may want to afford yourself the additional protection of actually registering the work with the copyright office. The fee is relatively small and you can obtain the forms yourself without the need for an attorney at the www.copyright.gov website. If you (or your agency) create a unique, original logo design that incorporates a slogan, you should consider having a copyright/trademark attorney do the necessary search (to make sure no one else has already protected the work) and file the proper documents for protection. Be sure to use an attorney that specializes in copyright work. They understand the laws and generally have set fee schedules so you know up front what the costs are.
Keep in mind that there are limitations to copyright and trademark protections. For instance, you cannot gain blanket, open-ended protection for slogans in every retail segment and use (unless you have very good lawyer!) Even though you protect a slogan for use in the retail automotive market, another retailer such as software maker or a furniture distributor might be able to obtain protection for a similar slogan modified for their specific marketing purposes.
One other protection you should consider is incorporating a statement of ownership in your employment agreements and sub-contractor agreements. Employees should agree that they will not share advertising and marketing copy, designs or concepts that are the property of your dealership with any other dealership without your specific, written permission. It is not an absolute guarantee that employees won’t take your ideas with them to other companies when they leave your employ, but it might slow them down. Locks are for honest people. Recently, a dealer friend of mine shared a story of how one of his best salespersons was friends with a salesperson at his direct competition. Often these salespeople would exchange stories on how successful (or unsuccessful) a weekend promotion was. Of course these thoughts would make there way up the food chain to the dealer. My friend sat his salesperson down for a little talk explaining how his innocent conversations were undermining the team efforts. Once the salesperson understood the ramifications of this information ‘exchange’ the problem was solved. The same is true with your contracts with advertising agencies and media companies. In any agreement or contract you sign, incorporate a statement of copyright ownership of your original works, and those works created specifically for you while associated with these suppliers.
Often, media representatives will innocently (or not) share stories of your successful marketing ideas with competitors in your own marketplace, leveraging your success to obtain additional business. Make it clear to all media representatives that your ideas should not be shared without your specific permission. Unless you have a trusting relationship with media rep, it’s a good idea NOT to share how well an ad worked. Some things are best left unsaid.
Take a look at your advertising/promotional expenses for the year. You are probably investing a substantial amount of money on your marketing efforts. While you can’t prevent all of your successful ideas from getting in the hands of your competition, you can make it a lot more difficult for the ‘idea thieves’ by recognition of the value of your ad-sets, and taking simple precautions to protect them to the greatest extent possible.
Do you have questions or comments about this or past AdTalk articles? Feel free to email them to CBC.
This issue of AdTalk is brought to you by Research Partners. Serving dealers for nearly 20 years to help reduce advertising cost: Research Partners
