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Copyright

By The Drum, Administrator

October 9, 2003 | 6 min read

After working in the creative industry in Dublin for around thirty years, Hugh Kearns had grown accustomed to continually being ripped off. But the final straw came when he was working on a TV campaign for a large insurance company in London. After a series of pitches, the prospective client declined a deal to work with Kearns and his agency, saying that the proposed work was good but that they wouldn’t be using it. They then paid Kearns for the pitch – a cheque for a few thousand pounds.

Perhaps the fact that the client paid for the pitch should have been a warning sign, as six months later the campaign was on television.

“It was remarkable,” says Kearns, inventor of the First Protection System and chairman of the Copyright Protection Agency, on a visit to The Drum offices to launch his new company.

“Ordinarily, you would soak it up and take the blow and get on with it. But after receiving the invitation to pitch for the business late, we had called up and asked for a couple of days’ extension, which was granted. After pulling out all the stops we were then interviewed all the way up the line to the chairman, who was essentially interviewing us to see if we knew enough or if they could rip us off. And they decided that they could rip us off – and they did.

“When we saw it we went to the lawyer to get advice and he said, ‘Tough. There is nothing that you can do about it.’ And that became the motivating factor to start this venture.”

This is often a problem for advertising agencies. A decision in the High Court in 1928 assigned all rights in work produced by ad agencies to the commissioning clients and, while this decision was subsequently overturned, the legend lives on and still gives rise to abuse.

The word agency, in this context, alludes to the fact that ad agencies began as agents of the media, for whom they sold advertising space to the clients on a commission basis. That commission was paid by the media, not by the clients.

In order to attract clients, the ad agencies presented them with clever, creative solutions to their marketing briefs. These creative “campaigns” were produced in house and the copyright belonged to the ad agencies. Rather than licence the creative work to the clients, as should have been done, the agencies instead gave the work away, free, gratis, as “loss-leaders” in order to win the contracts from the clients, thereby earning their commission from the media.

That was until commissions were effectively outlawed by EU regulations. The ad agencies were left in a quandary as to how to derive an income. The answer was clear: licence their creative work to the clients. But the clients didn’t like that, so the agencies charge fees based on various ad hoc frameworks - one problem that still plagues the industry today.

The problem generally for creative people is that they present work speculatively, and it can be a lengthy period of time between creating the work and getting approval for it or it being shown.

“The old trade secret of posting a copy of your work to yourself became common knowledge, and was degraded by the scallywags who abused this to the extent that it now carries no weight at all,” says Kearns.

“To counter that problem, we came up with a solution that is actually a very old solution. It works on the basis that we provide you with a specially designed envelope, which is tamper-proof and includes a Warranty of Originality, in which you place your work. You detach and keep your warranty with the bar code for reference and half of your signature, then send the envelope to the vault. The envelope is then stored in Pickfords document storage facility.

“If anyone should ever challenge the fact that you were the originator, and the Warranty of Originality fails to satisfy them, then you simply request the extraction of the document and it will be delivered to you in the presence of you, your protagonist and their solicitor – or direct to the court. Simply put, the First Protection System provides irrefutable proof of possession of any fixed expression of design.”

Most business people – and creative people too – are convinced that copyright is a complicated legal issue. On the contrary, copyright couldn’t be simpler, says Kearns: “Copyright is exactly what it says it is. That is, copyright is the legal right to copy an original work. It is a right that allows creative people to benefit financially from their work. The black hole in copyright is proving that the work was yours today, when you are showing it to someone tomorrow.”

The first recorded case of copyright judgment, claims Kearns, was made in the 6th century in Ireland by the High King against St Columba of Iona.

St Columba was a known plagiarist, copying the huge Latin psalters. As the King represented the highest law in the land, the Abbots asked him for a decision. Since Ireland was an agricultural society, the King looked to legal precedent and reminded everyone that if a calf was found wandering on anyone’s land without its mother, the calf still belonged to its mother. Hence, “to every cow its calf, to every book its copy”.

And it is in honour of this judgment that the recently launched Copyright Protection Agency has adopted the horns of a cow and calf as its logo.

So how can Kearns’ company be of benefit to the creative industry as it goes about its day-to-day business? One example, and perhaps the one closest to Kearns’ heart, is in the pitch situation: “If an agency is unsuccessful in a pitch for a contract, but the client likes the idea, the agency can make sure that its ideas are not taken advantage of.

“An agency can be up front at the pitch stage and say that the client is welcome to use the material, without needing to engage the agency – just the idea, if that may be the case.

“Now, if such an agreement is not struck, and the agency that failed to win the account believes that its work is being ripped off, it can call them to account and show the work that had been put into storage before the pitch, with a proof of first expression, and that is a very strong situation to be in.”

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