The advertising industry thrives on creativity, where ideas are currency and the ability to innovate can lead to international acclaim. However, this creativity is not without its legal and ethical pitfalls, particularly concerning the ownership and protection of intellectual property. The case of ‘The Steel of India’, a campaign produced by Kondurkar Studio for Jindal Steel and Power, has brought these issues into sharp focus.
At the heart of many disputes in the advertising industry is the question of who owns the rights to creative ideas. This issue is particularly pertinent in the case of ‘The Steel of India’, an award-winning campaign that has become the subject of a high-profile intellectual property dispute.
The Steel of India dispute
The campaign ‘The Steel of India’, produced by Kondurkar Studio for Jindal Steel and Power, was awarded at the prestigious Cannes Lions festival. However, its success has been clouded by allegations from Wieden+Kennedy, the agency behind the original ‘A Bit of Sail in Everybody’s Life’ campaign from decades past. Wieden+Kennedy claims that the core idea of ‘The Steel of India’ is derivative of their earlier work, leading to a contentious debate over what constitutes originality in advertising and who holds the rights to creative ideas.
Industry Norms and Legal Protection
Ramesh Narayan, Founder of Canco Advertising emphasizes the importance of clear agreements in determining ownership rights:
“The rights to a creative idea should typically follow a logical pattern. Since many times there is an overlap in ideation between the creative agency and the production house with some inputs even from the client, a normal agreement transferring all rights to ownership and use of the product (ad/film/jingle etc) to the client after the chain of payments to the Agency/production house have been cleared would be in place. However, many times no such clearly spelt-out Agreement is signed specially when smaller clients and agencies are involved. Here of course there is scope for wrangling. I would imagine that any such creative commercial venture involving a party who pays and parties who ideate or convert the idea into some creative product, the ultimate user, provided the agreed-upon payment is made, would be the natural owner of that creative piece of work, unless there is a legal document to the contrary.”
According to Narayan, the real tussle begins when multiple Agencies are invited to make a pitch for an account.
“Here Agencies flaunt their ideas in the fond hope that the client will get impressed and empanel them as the Agency on Record. An unethical client could easily absorb the essence of a wonderful idea and get another Agency to implement it. Here the entire industry moves on faith. And in most cases there is not even a fee that is paid to Agencies who are invited to make a pitch. Many years ago the AAAI wanted to formalize a Pitch Fee but the timid Agencies themselves aborted the idea.”
This highlights the standard industry practice where, upon payment, the client assumes ownership of the creative work. However, the lack of such agreements, particularly in smaller client-agency relationships, can lead to ambiguity and potential disputes over ownership.
Ethical Considerations
Narendran, who runs the brand consultancy firm- BRANDOC, raises ethical concerns regarding the industry’s handling of intellectual property disputes:
“It is very tough to test the DNA of a creative idea. And handcuff the man. Or reward the other. As a brand consultant over the years, I have been privileged to wade amongst many creative minds, one more original than the other! As I observe, the controversy over the Jindal Steel of India ad has become the Sound of India rather than the sound of steel. The more I read the arguments laid by Wieden + Kennedy and its originality claims on the idea behind the Jindal commercial, I am a bit amused. Much of the thematic core idea behind the Jindal ad is just an inspired better creative execution, yes execution, of the much-acclaimed A bit of sail in everybody’s life commercial that was aired more than two decades ago. In fact in that Sail ad the steel pin in that baby’s diaper has just changed to a Stethoscope in the Wieden + Kennedy and Kondurka Studio’s fierce fight over originality after two decades.“
His remarks highlight the subjective nature of creativity and the complexities involved in determining originality. He further critiques the industry for its sometimes-unethical practices, where agencies’ ideas are used without compensation or credit:
“The moment a client sees a good guy in a big agency, then they woo him around. And at the cost of a fraction a slave is born who becomes an overnight entrepreneur and a new agency for the client. He brings in all the good practices of the big agency. Many deep-pocketed clients have done this before and will continue to do it,” he said.
Narendran further added, “The man behind the idea of Kondurkar was born out of Wiede + Kennedy and the umbilical cord showed. You can never fault the parent or the child nor the new paramour. But if the client industry were more ethical and had a cool-off period during appointment of agencies, with a legal backing then such maneuvers will not be adopted and the incentive for idea plagiarism will slowly cease and be squeezed out of the system”
Narendran underlined that the legal backing can start with a self-regulatory mechanism to start with.
This critique underscores the power dynamics and lack of protections for agencies and creators, especially in the face of larger clients and agencies.
The Subject of Credit
Emmanuel Upputuru, Founder and Creative Chairman of EFGH Brand Innovations, offers a nuanced perspective on the subject of credit in advertising:
“The subject of credit is not a simple one. It is simple, because there is of course the truth. But it isn’t – because of how people perceive their own role in the development of the piece of work. I must share a small story. In my growing up days in advertising there was this ad for Reader’s Digest that was in the One Show, and this was the headline: ‘Bill Bernbach of Doyle Dane Bernbach had a healthy ego. Once when the colleague remarked on the nice weather, he said thank you.’
He further added, “In the agency that I was working at during those days, a manager level executive complimented my colleague’s boss and said, ‘Hey, nice campaign. ‘My colleague, who had cracked the idea, was right there along with all of us – and yet his boss didn’t even acknowledge his presence, or utter the perfunctory, ‘I have a great team.’ He just immediately said, ‘thank you’. We started calling him Bill Bernbach – he never knew why.”
I know the case before us is more serious. But is it truly more serious than the one above? It is more definitely more complex because there are companies, lawyers, now Lions involved.
“What we have on the table is a beautiful piece of work – that there is no doubt about it. And in one way or the other four entities contributed to the beautiful piece of work, the client who gave the brief, the original agency which worked and shared the idea, and when for whatever reason things didn’t work out, a second agency came into picture and took it ahead, the production house which produced a beautiful piece of art. (My creative comment though is – I wish there was a narrative to stitch the beautiful imagery.),” Upputuru added.
“I am sure there are many points of view. I just feel – just for a second leave aside all egos and take a bow,” he surmised.
Upputuru’s story and commentary illustrate the complexities and subjective nature of credit in advertising. While the truth of who contributed what may be straightforward, perceptions and acknowledgments can complicate the reality, often leading to disputes and feelings of unfairness.
Impact on the Advertising Industry
The dispute between Wieden + Kennedy and Kondurkar Studio has broader implications for the advertising industry. It raises questions about the ethical standards of agencies and clients, the protection of intellectual property, and the reputation of the industry as a whole. Such conflicts can damage trust and deter innovation, affecting the industry’s ability to attract and retain talent.
Narayan expands on this, stating, “These disputes not only tarnish the reputation of the agencies involved but also the industry as a whole. Clients and creative professionals alike begin to question the integrity of the advertising process, which relies heavily on trust and creative collaboration.“
Resolving Intellectual Property Disputes
To mitigate these challenges, industry associations like the International Advertising Association (IAA) and the Advertising Agencies Association of India (AAAI) could establish standardized agreements and guidelines for handling intellectual property. These measures would provide clarity and legal recourse in disputes, promoting fair competition and creative integrity.
Furthermore, Narayan underlined, “The only way to ensure a fair behavior is to have a standard Agreement made that is ratified by industry Associations like ISA, AAAI IBF etc. Then the Associations themselves could step in to help. Over and above that, legal recourse would be easy to obtain.”
