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How do I present ideas to a client while still keeping the ideas as my own?

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Stephen PickeringHow do I present ideas to a client while still keeping the ideas as my own?
by on Jul 20, 2012 at 6:12:41 pm

Hi there,

I will soon start brainstorming ideas for a unique commercial for a client. I mean unique as in it will be a creative spot which they are asking for my creative ideas for- they will give me a brief basically but I come up with the idea.

So how do I present them with three ideas I come up with and really like, but still make it clear that I own these ideas and am only offering them one of these for me to produce for them? Does that make sense?

I understand there's legal stuff involved and that if they took all of the ideas there will be a legal battle and all- I understand that and am honestly not worried about this client- but I would still like to present this to them in a professional way for them to clearly see what we are agreeing to.

I've kind of accidentally fallen into this new commercial/corporate aspect as some of my fun work has unintentionally been noticed by more people. I don't mean that arrogantly- I've got a lot of creative/technical learning to do, but I especially need to learn this business side of it now :)

I really appreciate your help in getting me in the right direction!

-Stephen



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Mark SuszkoRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 20, 2012 at 6:26:05 pm

Really, you can't. You're not in any kind of position to protect your ideas. Ideas are free. The *specific* creative EXPRESSION of an idea can sometimes successfully be protected, but you probably lack the resources to do that. Try a keyword search on "Discovery Channel production portal" here on the COW for some background. A client will not be interested in signing your NDA or anything like that. You tell your idea, you hope for the best. That's it.

Often when large ad agencies are asked to bid or submit a spec on a project, they get paid a token fee for some of their time and expenses, whether they get the job or not. There's a sort of understood gentleman's agreement that the losers' stuff will not be used by the client, but this still happens occasionally, even on Madison and Michigan avenues. Usually they keep it out of court, where nobody wins but the lawyers.

I once did a ton of spec work for a local business, an appliance store, for a radio campaign. My ideas were very creative, but they turned me down. However, they did tell me they'd give me half off on a water heater, if I ever needed one.... you know, for my trouble. But they had chosen to go in a different direction, as the saying goes...

Three weeks later, I hear a radio spot strangely similar to some of the specs I'd written for them. And I laughed. Because the radio station guy that ripped off my work didn't understand half of the background or the overall strategy, and the spots came off very weak. The appliance company folded a while later, I got a top prize in a local competition for a sample of my spec for that client.

My water heater is still okay, thank God.

Here's the thing: they can always rip off what you've DONE. But you get hired for the *next* creative thing you can do for someone, for what's in your head. What you're marketing is not the specific idea, but the mind that's GENERATING the ideas.



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Tim WilsonRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 20, 2012 at 6:33:57 pm

This is worth doing a search on in this forum, as it comes up pretty regularly. The short answer is, you can't. There's no such thing as owning an idea. There's no legal way to prevent them from 100% stealing your idea.

Taking your WORK, no. There are many protections for that. Taking your IDEA, yes. They're legally free to do that.

Your selling points are:

1) Nobody can execute this vision as well as I can;
2) I came up with THIS original idea. I can come up with others for you; and
3) You'll enjoy working with me.

(You'll see throughout the archives for this forum that if clients want to spend TIME with you that they'll be more likely to spend MONEY with you.)

The fact is that most people are a combination of ethical and lazy enough that nothing bad will happen...but it might, and there's nothing you can do about it but emphasizing the points above. It's never JUST about the work. Keep them focused on the big picture -- the one that has you smack dab in the middle. :-)

Good luck!

Tim

Tim Wilson
Vice President, Editor-in-Chief
Creative COW Magazine
Twitter: timdoubleyou

The typos here are most likely because I'm, a) typing this on my phone; and b) an idiot.


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Tim WilsonRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 20, 2012 at 6:35:35 pm

So there you go, Stephen. Two pieces of nearly identical advice in 5 minutes. :-)


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Mark SuszkoRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 20, 2012 at 6:37:27 pm

Mine had more story value ;-)


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Mark SuszkoRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 20, 2012 at 7:05:13 pm

BTW, if you get Sundance or IFC channels, program your DVR for "The Pitch". Two real ad agencies compete to do a campaign for a real client, and you see the behind the scenes process. Interesting.


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Stephen PickeringRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 20, 2012 at 9:17:16 pm

Well, guys, that's not really what I was hoping to hear! I was hoping to hear "add this magic line to the bottom of the contract and you're golden." Na, I'm just kidding, but honestly I did think there was more protection for the ideas presented.

I appreciate both of your helpful answers which are exactly what I needed to hear. I've done lots of commercial competitions and always tell myself I would laugh to see one of our ideas made into a million dollar spot...

Thank you very much for your helpful information- I'll do some more research as suggested but I think you've answered my biggest question of how to keep them as my own, "you can't."

Thanks!

-Stephen



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Mads Nybo JørgensenRe: How do I present #ideas to a #client while still keeping the ideas as my own?
by on Jul 21, 2012 at 8:36:10 am

Hey Stephen,

Mark and Tim is right, you cannot easily protect an idea. Best way forward is to convince the client that you are the best supplier.

However, you can "employ" a number of devices to help you secure your idea and concept. Potential client might not like these, but if you don't ask, you don't get and it also shows that you are professional:

1) Ask the potential client to sign a mutual NDA - this is for both parties to secure their confidential intellectual properties. (Please note: NDA's are very difficult and expensive to take through the courts, but they do show intent of good faith by both sides). Alternative could instead be to get client to sign an Account Application form for doing business with your firm. This form MUST come with Terms & Conditions attached and a box to tick for client accepting them. And it must include a clause for ownership of ideas and concepts.

2) Include people or locations into the concept that are unique and that will sign an exclusive contract with your company - i.e. if potential client approach them, they will already be assigned to you.

3) Produce a test video demonstrating the concept. By doing this, you take a tangible ownership of the idea, and you could potentially go after the winning production company for violating your copyright. (Please note that you must make your idea very unique for this to work)

My 5 pence :-)

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
http://mads-thinkingoutloud.blogspot.co.uk


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Tim WilsonRe: How do I present #ideas to a #client while still keeping the ideas as my own?
by on Jul 21, 2012 at 4:44:40 pm

I'm going to respectfully disagree, Mads.

The problem with an NDA is that it only covers disclosure, ie, telling somebody. That doesn't cover the real problem, which is the idea being stolen. The outstanding issue remains that ideas are mentioned in American law as specifically NOT being protected, and no agreement outside the law is legally binding.

This presents some very big issues. One is that if a client has even a passing knowledge of such things, the request gets laughed off, asking with 100% of your credibility.

Two is, this isn't rocket science, and shouldn't be treated like it is. NDAs are for major commercial enterprises, typically ones that are publicly traded where the consequences of leaked information can be disastrous - but absolutely not for something like this.

For example, at the COW, we are constantly being briefed on future stuff, including technology, movies, tv shows, and far far more. We might get asked to sign an NDA 2 or 3 times a year, if that. I can only think of 1 so far this year.

There is the additional issue of trust, the idea that if you ask somebody not to tell, and they agree, their word isn't enough for you? then don't work with then.

Little things: NDAs are contracts. Even many small businesses are required by their owners to consult counsel before signing contracts. Even without lawyers, he person you pitch to may not have authority to sign an NDA, so it would have to go to someone else in the company. Now, you've created an obstacle between you and the pitch. The object of the game is to remove obstacles.

I saved the biggest for last, which is: don't overthink this. Great ideas are a dime a dozen. They line the bottom of birdcages if they're not littering the street. The basis for success has never ever been great ideas. It's the ability to follow through, and do them WELL.

I use Apple as an example just because everybody else does: they were late to computers, dead last to add color, very nearly dead last to portable music players, very very late in the game to phones - the list goes on. The originality is in the execution.

To take that a step further, you can succeed with a crappy or derivative idea if you do it well enough. Ideas aren't worth that much at all.

Here's the biggest reason not to sweat this: Stephen, you don't know yet if even one potential client thinks you have a good idea until you pitch it. They might throw you out on your ear. But here's the thing - as they talk to you about it, they may make the idea even better. Because the best ideas aren't "things." They're platforms that you can build more and greater things upon.

The best things that happen in this industry - as in many others - are never the result of one person. They're the result of a collaborative, iterative process.

And hey, even if it really is the best idea ever, are you saying, to us, to your clients, to yourself, that you'll never come up with a better one>

So trust yourself. Trust your clients. Relax.

And never forget: there is precisely zero legal protection for ideas. Don't ask for something that you can't have.



Tim Wilson
Vice President, Editor-in-Chief
Creative COW Magazine
Twitter: timdoubleyou

The typos here are most likely because I'm, a) typing this on my phone; and b) an idiot.


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Mads Nybo JørgensenRe: How do I charge a #client for my #idea?
by on Jul 21, 2012 at 5:03:07 pm

Hey Tim,

What you don't agree with me!?

Actually, we do agree on this point: There is no way that you can protect an idea, because that is all it is - and once it is in the public domain, it is for all to use.

However, you can protect a business arrangement. And I hope that you will agree with the following suggestion: If a "client" ask a "supplier" to provide an idea. Then should the "client" use the idea, the "supplier" has the right to charge for it. For this to be enforceable, one needs to establish a business relationship.

I.e. Stephen ask the "client" in writing to confirm that they would like him to make a proposal. There would be nothing wrong in him agreeing to do so, provided the client understand that there will be a charge should they want to use the idea - obviously he has to make this point upfront, rather than when the horse has bolted.

An NDA is not perfect (as previously stated), but it is one way in the eyes of a court to establish a serious business relationship.

All of this is a mute point if Stephen is very good, competitively priced and the client feels that he is the right man for the job...

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
http://mads-thinkingoutloud.blogspot.co.uk


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Tim WilsonRe: How do I charge a #client for my #idea?
by on Jul 21, 2012 at 5:24:30 pm

[Mads Nybo Jørgensen] " If a "client" ask a "supplier" to provide an idea. Then should the "client" use the idea, the "supplier" has the right to charge for it. For this to be enforceable, one needs to establish a business relationship. "

Yeah, you can charge for it if the client asks, but only if the client feels like it. It's perfectly legal for a client to say, "Hey Stephen, pitch me an idea like THIS," and Stephen pitches it, the client says "No thanks," and then does it themselves exactly like he pitched it. It's not common, but it has happened to people in this very forum. And while skeevy, it's 100% legal.

The point being: ideas have no protection, even in a business relationship.

That's actually written into American law. You can't contain an idea in a contract. It's the reason why American trademarks and patents expire. Ideas are SUPPOSED to float free. They belong to everyone. It's the American Way.

(In fact with trademarks and patents, it's not just the idea that floats free -- in many cases the actual WORK can float free, for you to do with as you please. Hence Pride & Prejudice & Zombies. Ready to print and sell your own edition of Moby-Dick? Go for it. You don't even need to include the hyphen if you don't want to.)

Your problem Mads is that, over there in the UK, things are much more civilized. LOL

Tim Wilson
Vice President, Editor-in-Chief
Creative COW Magazine
Twitter: timdoubleyou

The typos here are most likely because I'm, a) typing this on my phone; and b) an idiot.


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Mads Nybo JørgensenRe: How do I charge a #client for my time spend on an #idea?
by on Jul 21, 2012 at 5:37:30 pm

[Tim Wilson] "Your problem Mads is that, over there in the UK, things are much more civilized"

Ha, yes. Well, actually no.

However, Pride & Prejudice & Zombies and Moby-Dick are bad examples as the Authors' copyright has expired. So it is only the print version that you're using that you've got to make sure is over 75 years old - anyway, this takes us away from the discussion in hand.

Let me spell out my reasoning more clearly ;-)
Stephen will not be charging for his idea per say, instead he will charge for the time spend on creating the idea - in order to do so, he needs to establish a relationship with the client. There is a number of devices that he can employ in order to establish a relationship.

And yes, if the client doesn't like Stephen's idea, then he could agree that they don't have to pay him - everybody wins...

Does that help?

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
http://mads-thinkingoutloud.blogspot.co.uk


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Mark SuszkoRe: How do I charge a #client for my #idea?
by on Jul 21, 2012 at 6:30:23 pm

It *used* to be the American way. Not to get too political here, but American copyright law is a mess because corporate interests, Disney foremost among them, successfully bought-off Congress to keep extending copyright protections way beyond what would be fair to the estates of the original creators, and to lock everything up so that guys like us are afraid to let anything appear in our frame for fear of a lawsuit.

Meanwhile, the overly protective laws breed contempt and defiance by the "small fry" like wedding guys and in-house producers, creating a piratical atmosphere. We sit in a situation where following every nuance of the statutes is ridiculously complex and discouraging to the law-abiding, but the punishments for minor infractions are obscenely overdone. It can't change until we change the laws, and we can't change the laws unless we're billionaires.


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Jonathan ZieglerRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 21, 2012 at 4:37:17 pm

Before you have the meeting, they should all sign a non-disclosure agreement that clearly indicates you will be sharing something with them that is your intellectual property. Have clear and concise notes for the meeting - your ideas are just ideas and aren't protected, but your notes are part of the unique expression of that idea and are protected. So far thats protecting trade secrets and copyright.

Lastly, even if they "steal" your idea, they still have to do the work which is the really hard part. Really, if you have a handful of ideas, you haven't got much. An idea is only as good as its execution. If they like your ideas and they think you can execute them, then they'll hire you.

Jonathan Ziegler
http://www.electrictiger.com/
520-360-8293


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Nick GriffinRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 21, 2012 at 9:26:12 pm

I may be late to this thread, but I'm also probably one of the few who has literally gone to court over a client stealing an idea.

Several years ago when more of our work was in print than it is today we had a client who, while a massive conglomerate in the food industry, had traditionally shown little faith in advertising and promotion. And had, over the years, budgeted accordingly.

Then one day I was told that all of that was about to change. One of the sons of the conglomerate's founder, and a highly placed sales executive in one of the divisions -- let's call him Junior A*hole -- came to me with his vision for launching a new brand, spending healthy sums of money and "doing it up right."

On the basis of his meetings I brought on an extremely talented copywriter, an outside art director who specialized in branding and a very senior media planner. We developed a brand concept, a catchy tag line, a unique logo and a detailed marketing plan and a "doing it up right" media plan and budget.

After several weeks of working this up I presented this comprehensive approach to Junior A*hole. It was well received but I was told, "We'll get back to you." Two weeks later when I again inquired I received the same answer. A month later still no decision. Mind you we were still doing small jobs for a division of this organization so I had reason to stay in contact without being a pest. Finally, after a few months had passed I was told "No. We won't be doing that. Too much money, the old man (A*hole Sr.) will never agree to this. Just forget about it."

Jump ahead about a year and a half, and there, sitting on the shelf of a large grocery chain, are their packages with OUR LOGO and OUR TAGLINE. The next scene is of me dashing between multiple grocery stores to confirm that this isn't a limited market test, but apparently a widely available product. I could have driven to several other states to see just how widespread the distribution was, but surely the client would be reasonable and AT LEAST be willing to compensate us for the logo. You'd think that, right?

"What are you talking about? That was just an idea you had," states Junior A*hole. "Ideas are free. Everybody has IDEAS. We just gave this to the people who provide our packaging and they put it on our packages." Attempts to find a more reasonable response from others we knew within the conglomerate met with no success and I was advised to "just move on." Which I did. To my law firm.

We filed suit based on (and here's where my memory may not serve me fully) unfair competition based on their original mis-representation that we would be making a lot of money off the "doing it up right" media expenditure. This then proceeded through multiple depositions of both sides and it was fun watching Junior A*hole's flop sweat under deposition questioning.

The defense attorneys came back with their claim that because some yogurt -- an entirely un-related food type -- in Canada (no less) used to have the same tagline (unbeknownst to me and my team) our whole suit was therefore invalid and would likely lose at trial. I proceeded to trial.

After a few hours of voi dire of potential jury members, the judge made one last attempt to push us to settle before going to court the next morning. The defense finally offered us a mid-five figure settlement and I accepted it, mostly on the basis of being a little spooked by the contention that our tagline was not original.

The sad coda to this tale of a legal battle over intellectual property is that, when all was said and done to get to that point, all but about $5,000 of the settlement was eaten by legal fees to my attorneys. And who says nobody ever wins in these kinds of lawsuits? The lawyers do EVERYTIME.

So I don't fully disagree with the earlier posts, but I have pursued justice for having work stolen and won. Kind of.


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Mads Nybo JørgensenRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 21, 2012 at 9:30:42 pm

Hey Nick,

Well done for sticking to your guns! As much as the lawyers got the fees, you got to feel that you did the right thing, and that is often worth a lot more than the cash.

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
http://mads-thinkingoutloud.blogspot.co.uk


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Tim WilsonRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 22, 2012 at 12:02:42 am

Nick, you're an inspiration to us all. it's great to hear a story where the guy who SHOULD win actually DOES win. I'm proud to know you.

For the purposes if the conversation though, note that logo, tagline, copy, etc. are WORK, which is protected. The idea for, say the campaign and its execution, wouldn't have been. Kids, look up "idea-expression divide." Idea: no legal protection. Expression: legal protection.

I was afraid I said it too strongly in my previous post, but I clearly didn't say it strongly enough: do not even THINK about an NDA.

I'm not scolding anyone on this thread, I promise. This comes up every couple of years, and I'm terrified that some day, somebody might be persuaded that it's a good idea. It's not.

I would be horrified to have a Business & Marketing forum where anybody came away thinking that an NDA is even vaguely a good thing in these circumstances. in fact, I hope that one of our most enduring legacies is to make sure that this potential disaster never ensues. not kidding, even a little.

Here are a tiny handful of reasons why should never utter those three letters in this context again:

  • They're not applicable because THE LAW DOES NOT SUPPORT THIS USE OF THEM.
  • They're not binding because THE LAW DOES NOT SUPPORT THIS USE OF THEM.
  • They create an atmosphere of mistrust
  • The person you pitch to may not be authorized to sign NDAs...
  • ...and seriously bro - how many NDAs have you signed? One? Two? None? It's just not done outside of very specific conditions, NONE OF WHICH ARE IDEAS.
  • The person you pitch it to thinks its a terrible idea and resents that you wasted even MORE of their time with the NDA.
  • The person you pitch to may not be authorized to sign NDAs...
  • ...and seriously bro - how many NDAs have you signed? One? Two? None? I've been in news and PR in this industry for 20+ years, and have signed maybe 6 or 8. I've worked at publicly traded companies who guard their secret like trolls protect gold and have asked people to sign NDAs twice. It's just not done outside of very specific conditions, NONE OF WHICH ARE IDEAS.
  • An NDA is an implied threat.Seriously, ask yourself: do you want a client to listen to your pitch while wondering if you're going to try to sue them? Insanity.
  • Although rather than make them afraid, it'll show them that YOU'RE afraid. Clients smell fear.
  • The person you pitch it to thinks its a terrible idea and resents that you wasted even MORE of their time with the NDA.
  • Are you sure it's original? REALLY REALLY sure? Imagine making your NDA-d pitch (although I beseech you to NEVER EVER EVER consider such a thing) and the client says, "Turn on Channel 972. Your idea is on TV RIGHT NOW." I've never met anybody more thorough than Nick, yet somebody had come up with the same tagline without him finding out. How far out on a limb are you willing to go to expose your research skills?


This is a short, short list. You can Google "idea-expression divide" to come up with case law dating back to Article 1 of the US Constitution (home of the Copyright Act) for a bunch more.

Here's the biggest reason to never, ever consider asking for an NDA. (Aside from the fact that they're neither relevant nor binding when pitching ideas.) You are not a troll. You are not a prospector in 1849. Your gold is not a pile of rocks that you're sitting on, with you willing to kill anyone who comes close.

You are a creative person. Coming up with great ideas is your JOB. More than that, it's your NATURE. You want people to feel comfortable that you come up with great ideas as easily as you fart because THAT'S WHAT YOU DO. You're an idea guy. If they work with you, they'll never run out of great ideas because YOU'LL never run out of great ideas.

(Don't forget that there are entire swaths of this industry, from advertising to joke writing, where pretty much your ONLY job is coming up with great ideas.)

If you really feel like this is your one and only golden ticket, that you'll never have an idea this good again so you have to do everything possible to protect it -- at your age? This is best you're going to have for the rest of your career? It's gonna be a short one.

Trust yourself. Relax. Enjoy the ride. Enjoy the power that comes from knowing that nobody can steal ALL of your great ideas, because your great ideas keep coming. They are relentless, and so are you.

And don't forget how rich people have gotten not just with crappy ideas, but ideas that are crappy and derivative of other people's crappy ideas.

And don't forget, no kidding man, great ideas are all around. The way to keep people from taking them from you and running with them themselves is if you convince them that you've got the goods for actually MAKING MONEY with the idea, which is actually an entirely different skill set - and most clients know that.

But mostly trust yourself to have more than one great idea.

Tim Wilson
Vice President, Editor-in-Chief
Creative COW Magazine
Twitter: timdoubleyou

The typos here are most likely because I'm, a) typing this on my phone; and b) an idiot.


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Nick GriffinRe: How do I present ideas to a client while still keeping the ideas as my own?
by on Jul 22, 2012 at 12:32:57 pm

[Tim Wilson] "Nick, you're an inspiration to us all. it's great to hear a story where the guy who SHOULD win actually DOES win."

Puh-lease!! Mine is not a tale of good winning over evil, it's a cautionary tale of the actual cost of time and emotion just to achieve a meager settlement with the actual net result being to further enrich a couple of law firms.

When I read here on the Biz COW about people wanting to go to court over debts owed or transgressions committed I want to give them a jolt of reality. Perhaps now I have.


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Mads Nybo JørgensenRe: How do I keep the #ideas as my own?
by on Jul 24, 2012 at 7:30:56 am

Just to add to Tim's last post - NDA's (& mutual NDA's) are quite common in many other industries and government organisations, and rightfully so. However, you need to know how to use them + they probably won't be a good thing if you're in the business of Social Media and/or distributing other people's content ;-)

Again, for those who didn't get it, NDA is only one of several ways to establish a business relationship - which is the basic fabric for making any future claims, should such unfortunate experience had to happen.

Stephen, do whatever you feel comfortable with. But it is true to say, that you just have to trust your potentially new client, or you'll never get to do any business at all.

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
http://mads-thinkingoutloud.blogspot.co.uk


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Stephen PickeringRe: How do I keep the #ideas as my own?
by on Aug 7, 2012 at 5:39:40 pm

Hi everyone,

I really appreciate your input in this. I totally agree that ideas are all over. I hate when I see a super creative commercial and think to myself, "Man, I wish I had thought of that!!"

I'll let you know how things unfold, but I'm really looking forward to building this relationship with the client. And just to give a little context, this is not a $30,000 project. It's much, much smaller :)

Just a quick question, are films copyrighted because they are completed pieces of work? Is Fargo just an idea which I could re-film myself, or am I misunderstanding something?



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