No copyright on a pitch

In the creative sectors of the business world, such as the advertising or entertainment industries, concepts and strategies are often presented in a so-called "pitch." An advertising agency, for instance, may be invited to give a brief presentation in which it presents the marketing strategy it envisions for a particular company.

The art to presenting a pitch like this is in not giving your best ideas right at the start. If you do this, you run the risk that the company will run off with your ideas without compensating you for them. Basically, this is not unlawful, since a pitch does not in principle enjoy IP protection - as the district court in Amsterdam recently ruled.

Advertising pitch
An advertising agency was invited by a premium pension institution (BeFrank) to present a pitch prior to the launch of a new brand. Among other things, the agency presented the slogan: "The clearest pension in the Netherlands." BeFrank chose not to work with the advertising agency, and did not pay for the pitch.

Two months later, BeFrank launched an advertising campaign featuring the phrase "For clarity’s sake." From other things as well, it was clear that they had used the contents of the pitch by the ad agency. The agency was ‘not amused’ and resorted to the courts.

IP protection for pitch?!
The district court in Amsterdam ruled that, in principle, the legislation did not intend to protect the ideas in a pitch by the advertising agency in the sense of assigning such ideas any exclusive or enforceable rights.

The content of the pitch is not protected, which renders the alleged use of these ideas by BeFrank not unlawful, in principle. If it found differently, the court would effectively broaden the protection envisaged by IP legislation. Exceptional circumstances would perhaps lead to a different ruling, but in this case there were none. The court rejected the agency’s claim.

Lessons for when you pitch
It is not clear from the district court’s judgment under what circumstances BeFrank’s use of the agency’s ideas / slogans would have constituted an infringement of the agency’s IP rights.

Suppose BeFrank had used lines from the pitch verbatim - would that have constituted  a copyright infringement? I think so, supposing - at any rate - that the text was sufficiently original.

However, it is a good idea to arrange for the protection of your pitch in advance. If you come up with a brand name, see to it that you register it in time.

If you come up with a good slogan, don’t neglect to enter it in the GVR/slagzinnenregister (the catchphrase register of the Dutch advertising association GVR). This register gives the creator of a slogan additional protection - via verification and advance registration.

The most effective solution, however, is to have your client sign a confidentiality agreement, according to which the client may not use your pitch - or part of your pitch - without your consent. This prevents any infringement of IP rights upfront.


Paul Visser is Attorney-at-Law at GMW Advocaten / Legal Expat Desk. For more information, please comment below or contact him directly.