Cover off on the basics
Agencies are struggling with a tough question of how to best protect their intellectual property during RFPs. That's because over the past few years companies have really tightened up their RFPs, including clauses that legally entitle them to the responses. Here's a typical clause from a Fortune 500 RFP: "All responses and materials submitted in response to this RFP shall become the sole property of the company issuing the RFP."
To participate in large RFPs, agencies have to agree that ownership transfers from them to the companies issuing the RFPs. Companies insist on this clause, and even the largest global agencies reluctantly agree to it. We understand these companies are not trying to steal our intellectual property, but instead are directed by their lawyers to include the clause, as it protects them from possible future legal claims to campaigns, ideas and concepts.
As a veteran of many, many, many RFPs, my recommendation is to cover off on the basics.
- First, document to the person managing the RFP that 1) your agency is uncomfortable with the ownership clause, 2) that your understanding of the clause is to solely protect the company from future litigation and 3) your expectation is that the company will not under any circumstances use any of your IP without written agreement and appropriate compensation.
- Second, copyright all the materials you are delivering/presenting.
- Third, deliver summarized written/or presentation responses and verbalize much of your IP so it is more in your control.
And here's a final word of advice. Keep in mind that the suits at the Fortune 500 are reasonable, fair business people. A few years ago, we won a RFP issued by a highly prestigious Fortune 100 company from the global AOR incumbent. The incumbent AOR, embarrassed, appealed the decision at the Board level and offered to provide the services gratis. The Board agreed. Ouch!!!
While this happens, the game's not over. Make your case to the individual running the RFP. In this instance, given that the client wanted to use our IP, it agreed to pay the full cost of completing the assignment and also chose us as AOR for another brand. Bravo!! That's fair play in action.
It's your IP: Don't give it up without a fight.