Clients may wander to other companies, but your ideas don’t need to go with them.
It’s an occupational hazard for event planners and tent rental businesses. You spend no small amount of usually unbillable time developing an event design for a prospective client, only to have that person wander away—your ideas in hand—to a different outfit that ends up producing an event suspiciously similar to the one you proposed. Not only has that company gotten the job, it’s likely done so using your intellectual and creative property.
Such a transgression can be hard to prove, but those who have been violated this way aren’t without recourse. But first, what constitutes intellectual and creative property?
“Very generally, intellectual property is the ownership of something intangible that someone has created,” explains Betsy Butwin, attorney with Bernick Lifson, P.A. Based in Minneapolis, Minn., the firm works with the creative side of the event industry, and provides a range of services to other kinds of businesses. “[Intellectual property] becomes a commodity that the owner can trade, sell or rent, just like real or personal property.”
Butwin says intellectual property is an umbrella term for five types of property:
- Copyright. Protects ownership of original works of authorship. Generally for works of art, literature, music, choreography, A/V works, computer code and architecture. Copyrighted work must be independently created by the author, fixed in a tangible form and have some degree of creativity.
- Trademark and service marks. Both protect brand identifiers, such as a business name or logo, protecting businesses from competitors using “confusingly similar branding.” Trademark applies to goods; service marks to services.
- Trade secrets. Protects proprietary business information that could cause harm to the marketability of the business if leaked. “Trade secret is often the only means of intellectual property protection for things like recipes,” Butwin says (think KFC® or Coca-Cola®).
- Patents. These protect inventions of formulas and processes (machines, devices, medications, etc.).
Event planners and tent rental companies can safeguard their intellectual property using several of the above protections where appropriate, and in general, brand identifiers such as business names, logos and lines of service can be protected with a trademark or service mark, Butwin says. Because event plans and proposals “may or may not be trade secrets,” it’s a good idea to have the potential client sign a non-disclosure agreement prior to presenting the ideas. This can work well in a business context, but may make a preliminary meeting with a potential wedding client a bit awkward, she says.
“There may also be copyrightable assets,” Butwin continues. “If an event planner has designed an original tangible work, like an invitation or a program, any unauthorized reproduction of that work would be a copyright infringement. It’s also very important to understand that ideas themselves cannot be locked up, but the expression of those ideas can.”
Circling the wagons
These legal protections have offered some companies a tool for protecting their intellectual property. For example, Joyce Scardina Becker, president and designer-in-chief of San Francisco, Calif.-based Events of Distinction™, trademarked her business name and logo and has occasionally hired an attorney to write “cease and desist” letters to other planners who started up businesses with that same name. This effort has generally been successful when the companies are based in the U.S., she says. However, for planners outside of the country using this name, there’s not much she can do.
Proving that someone has infringed on a copyright can be more trouble than it’s worth, and ultimately impractical, says Scardina Becker, since you have to demonstrate in court that the design was unique, that you came up with it first and that your business was harmed by the violation, she explains.
Andrea Michaels, president and CEO of Extraordinary Events, Sherman Oaks, Calif., agrees proof can be hard to come by, even when there’s a trademark or copyright. Agreements between companies to not participate in intellectual property theft may provide better protection.
“It’s a relatively small community, and many of us know each other well,” Michaels says. “If the most recognized companies can agree they won’t accept anyone else’s ideas and produce them, then we’re fine. And many of us have those agreements in place, often to the point where we’ll reject business offered by a client who does that.”
Michaels says if a potential client comes to her with another company’s proposal, she’ll call that company to let them know. At the same time, she’ll refuse to review the proposal. She hopes other companies respond in kind.
“You can also have clients sign a document before you send them any proposals that they [won’t shop them to other companies],” she says. “But unless you want to spend a lot of money on attorneys, it’s not worth the financial effort.”
For some companies, charging clients a fee to develop a proposal has discouraged intellectual property theft (or may at least make the violation sting a bit less), although this isn’t appropriate for every company or situation. Stephen Frost, president of Stamford Tent & Event Services Inc., Stamford, Conn., says his company receives many proposal requests from architects, property managers and venues interested in covering outdoor spaces, endeavors often requiring custom sizes, shapes and anchoring solutions.
“We put a lot of time and effort into these, and if the end user decides not to move forward, or puts our design out to bid, we’ve wasted tremendous resources,” Frost says. “Consequently, we created a consulting agreement requiring an advance retainer payment, which varies with the project, and we charge our time off to that advance. If the hours spent exceed the advance, we get another one before moving forward.”
The agreements are sent after an initial phone call and site visit. Frost says the company will wait until receiving the retainer before moving to the design phase. It typically only implements this strategy for projects requiring custom solutions or projects that seem unlikely to come to fruition. This way, Frost says, if the client decides to jettison the project, or to use the design as the basis for a request for proposal (RFP), the company has at least been paid for its time and creativity. If a standard rental tent will get the job done, there’s no need for a consulting agreement.
“Most clients don’t have any issues with the agreement,” Frost says. “The ones who do are typically the clients that are just fishing for ideas and the lowest prices, so we really haven’t lost anything.”
Michaels says her clients are rarely willing to pay for development. Instead, she sends clients several one-paragraph ideas for their review. “When they define which of these ideas they want developed, we can proceed,” she explains. “This saves the time and effort involved in putting together a proposal they may not be interested in.”
Michaels thinks of proposals as an investment that, if initially rejected, may pay off in the long-term, recalling one submitted for a program in Hawaii. “This was in the days of the fax machine,” she says. “I faxed the creative to my client and the person who took it off the fax machine loved it. Even though the original client didn’t hire us, the second one did, and for a much larger program.”
Online image protection
Butwin also receives inquiries from planners regarding the ownership of photos for events they’ve styled, believing they have some stake in the copyright. Although she observes that every situation is unique, generally the copyright belongs to the photographer (unless contracted otherwise) who typically can authorize the use of the photos by others. As for copyright-protecting the event styling photographed, Butwin explains that unless the styling is fixed, rather than temporary or fleeting, it can’t be protected this way.
She advises photographers to watermark images destined for the Internet; a tactic that Scardina Becker has deployed, but one she finds unwieldy when multiple service providers are involved. In this case, everyone responsible for the event should be credited, she says, including the list as a photo caption when feasible.
What can you do if your copyrighted image appears online without permission? Butwin suggests letting the offender know your intellectual property has been used without permission and the image must be taken down. If it isn’t, the next move is a formal “cease and desist” letter. If that fails, contact the Internet service provider. Most have policies requiring them to take down any content shared without the copyright owner’s permission. If they don’t remove the content—or do and repost it later—you may need to explore additional legal options, Butwin says.
Pamela Mills-Senn is a freelance writer based on Long Beach, Calif.