With the sharp increase in competitive pitches and RFPs, public relations firms are doing more and more work in speculative pitches in the hope of landing the assignment. But that is no reason why public relation firms should give away their creative concepts and strategies. (See last week's op-ed by Jerry Johnson for more on protecting your creative intellectual property)

Public relations firms can and should take a series of steps to protect their intellectual property when pitching prospective clients, or even seeking new projects from existing clients. The more public relations practitioners act as if their intellectual property is valuable, the greater value it will have — and the more PR firms will be valued for their marketing strategy and expertise. To get some answers on some of the best ways your PR firm can and should protect its speculative creative work, we spoke with Michael Lasky, partner and chair of the Public Relations Law Group of the New York City-based law firm of Davis & Gilbert (www.dglaw.com), a firm specializing in meeting the legal needs of marketing communications companies.

How can a public relations firm best protect its creative ideas and concepts in speculative pitches to potential clients?

There are two general ways. The first is to provide the potential client prior to the pitch with a non-disclosure agreement. This non-disclosure agreement should clearly state that the prospective client will not use or disclose the creative work and ideas of the pitching agency unless and until a mutually-agreeable form of compensation is worked out.

The second way is for the pitching agency to include protection in the pitch materials themselves. There are two basic types of laws that protect ideas. These are the copyright and trademark laws. This means that the written submission itself should have a copyright notice on it. It should also include a notice that the material contains confidential and proprietary information protected by the U.S. intellectual property laws. This note does not have to appear as a "turnoff" to the potential client. Rather it can actually enhance the reputation of the pitching agency to the potential client by demonstrating that the pitching agency creates valuable intellectual property and knows how to protect it.

The written submissions of the pitching agency are likely to include logos or taglines or other names or logos that the pitching agency created to help brand the program or business of the potential client. Those names and logs and taglines are protected by U.S. trademark law and those names, taglines and logos should have a trademark notice near any appropriate materials in the written pitch.

If there were a lawsuit, how does the PR firm prove its creative ideas and concepts were stolen?

Typically, in the pitch, the pitching agency would provide a written submission to the potential client which would include the pitching agency's creative ideas and concepts. The pitching agency would try to establish the substantial similarity between the ideas and concepts that they pitched to the potential client and those that were ultimately used by the potential client.

How is it possible that a PR firm could ever lose rights to its creative ideas and concepts?

There are two ways. The first way for the pitching agency to lose its rights could occur before the pitch. The potential client may provide the pitching agency with an unreasonable non-disclosure agreement in the fine print, which requires the pitching agency to transfer the ownership of its creative ideas and concepts. Agencies should read this type of agreement carefully and with work with experienced legal counsel because such agreements should not be signed by the pitching agency.

How do you deal with the transfer of ownership provisions in the non-disclosure agreement or pitch agreement?

You don't sign them. If you have to sign a non-disclosure agreement, it should come from the agency's legal counsel or the agency's legal counsel should revise the potential client's non-disclosure agreement so that it is acceptable by both parties.

Sometimes clients pay for pitches in exchange for ownership. Is this acceptable?

This is not acceptable. The amount of money an agency is offered is usually so nominal that it is really not compensation for the actual value of the pitching agency's creative ideas and concepts. Accepting this nominal payment becomes, in essence, a license for the potential client to use the pitching agency's ideas without hiring them.

I am hearing from many PR agencies that the costs of creating a pitch for a potential client may run upwards of $75,000 to $100,000 in time and expenses and their pitch contains their highest level of thinking and best ideas. So, is a nominal payment of a couple of thousand dollars just compensation? Again, the answer is clearly 'no.'

Assuming the pitch agreements don't transfer ownership, what steps can an agency take to limit its exposure?

If there is not a signed non-disclosure agreement, then you especially need to include in your pitch materials your copyright notice and the notice that these materials contain information that is confidential and proprietary under the U.S. intellectual property laws.

If you have taken appropriate precautions, and a client still takes your ideas or your creative materials, what can you do?

There are a variety of alternatives. The first is a legal letter to the potential client setting forth the basis for the pitching agency's claim of violation of the non-disclosure agreement, violation of copyright law and/or violation of trademark law.

It is important to note here that the potential client, even if it is a large company, is comprised of individual executives and it only takes one thoughtless person at a potential client to have your ideas or creative materials stolen. In other words, this conduct may not necessarily be endorsed by senior management at the potential client.

For example, in the real world, five or more agencies may pitch a potential client. There may be several people from the potential client in the pitch meeting, all of whom see the competitive submissions. There could be an instance of just one person at the potential client's who does not appreciate the protection that the pitching agency has on its intellectual property and carelessly gives the ideas of one of the unsuccessful pitching agencies to the chosen agency. In such an instance, the letter from the agency's legal counsel may need to be directed to the general counsel of the potential client or a very senior officer of the potential client, who may or may not be totally unaware of what has occurred. In such an instance, the agency or its legal counsel would investigate the claim and agree to a fair and negotiated payment to the pitching agency.

If that doesn't work, the next step would be the filing of a lawsuit for violation of the non-disclosure agreement, copyright and trademark law — assuming of course, the pitching agency has followed the steps outlined in this interview.