Measuring the value of PR is indisputably the prevailing dilemma the industry faces. But there is another unsolved issue that often brings even more anxiety to agencies when developing new business – idea sharing. Navigating the fine line between “not enough” and “too much” when submitting proposals and RFP responses is a concern that comes up time and time again. In scenario one, an agency that provides only capabilities without concrete campaigns or ideas is not likely to be chosen, as the prospect can’t accurately assess if the agency’s line of thinking will lead to a successful outcome. On the other hand, the agency that reveals too much in the proposal phase runs the risk of having their ideas stolen, the prospect ultimately deciding they can implement their newly discovered creativity with existing resources for a fraction of the cost. Or, even worse, they hire the lowest bidder and let them execute your ideas. Is this fair? Is it right? Of course not. Is it legal? Unfortunately.
In the world of intellectual property – the bread and butter of PR – ideas alone cannot be copyrighted, trademarked or patented, and are therefore very hard to protect. However they remain a firm’s best competitive advantage. So, if withholding ideas is not an option, the question becomes, “what’s the best way to present our ideas and protect them too?”
Joel Feldman, an IP and trademark attorney with Greenberg Traurig LLP, says that because ideas are not automatically protected under IP law, many people resort to using contract law instead. “A non-disclosure agreement or ‘NDA’ is the most common type of contract used to attempt to protect ideas,” Feldman explains. “But NDAs are often difficult and costly to enforce. And, like a prenuptial agreement, they may cause ‘relationship strife’ early on in the new business relationship.”
Furthermore, companies, especially those rifling through dozens of RFP responses, are likely to find the added task of signing an NDA an annoyance and will toss those in favor of an easier route, thus rendering your ability to win the account as ineffective as if you hadn’t supplied the ideas in the first place. On the other hand, the NDA sends a strong message that your contributions are valuable, worth consideration and not to be taken lightly. Either way, Feldman suggests discussing the pros and cons of using NDAs with an attorney. An alternative to an NDA is adding a subtle disclaimer in your proposal, such as “Content supplied in this proposal is confidential.” While it would never hold up in court, it might be enough to dissuade a company from any disingenuous attempts.
The best approach is to strive for balance and compromise. If you are truly concerned, then don’t supply your prospect with every idea you come up with – if you have five to seven, give them three. Eliminate your weakest and strongest idea from the list, and submit the others. The first key here is to communicate that the three you’ve chosen are only a sampling of your overall strategy – a preview of what you’ll do. The hope is that this preview will not only confirm your creativity is on the right track, but that it will also entice them to want to see more. The second and perhaps even more important point to make is that your agency is uniquely qualified to implement the presented ideas. Great ideas without great execution are meaningless.
Ultimately, you’ll have to face the reality that there really is no perfect solution here. Recognize that the potential for reward outweighs the risk. Acknowledge that there is a real possibility you won’t win a contract but might see a press release down the road announcing a new campaign that is too similar to be a coincidence. But also acknowledge that most companies and brands – especially those willing to put the effort into a formal RFP process – are ethical and operate with integrity. It reflects poorly on them to employ such a practice, and they are most likely to hire a creative partner that submits the best case for success. Finally, find solace in the fact that you’re not alone. Every agency is in the same boat. If the worst happens, pout and move on. But if the best happens, you’ll have a bright, shiny new client to show for it.