The Teckki Says

I came across a very interesting article in Crain's Chicago Business (Sears Riles Shop With Demand: We Will Own Your Ad-pitch Idea) regarding ownership of advertising materials prepared in submission of bids. While this story demonstrates a classic battle of the titans, it’s one that often occurs at the level of lesser gods as well.

You are the person in charge of getting your organization’s new website up. You do a lot of research, get three bidders, and ask them to send in a proposal. One of the bids has nothing you want, the next bid has 20% of what you want, and the last bid has 80% of what you want. Is it o.k. to get material from the 20% bid to supply to the 80% winner for your use?

Generally, no.

The article clearly answers that question in that Sears took the opportunity to demand it. Many organizations don’t know that they have to seek permissions and releases, and take advantage of ideas and content they don’t own. Bad idea. Remember, the losing bidders can easily find you and their material.

Given that, it makes sense to talk about what you own, and what someone else does, to avoid any issues:

1. You own all material, such as text, pictures, graphics and other content that originates from you and you supply a vendor in preparation of a bid.
2. You own all materials – music, programs, content, etc., that you obtained in a "Works for hire" type arrangement that explicitly spells out your ownership rights.

Generally, here is what you do not own:

1. Works created by someone else, even if they are royalty free.
2. Works that are derived from another work, in part or in whole.
3. As the article suggests, works created preparation of a bid, even if it contains your content (permission to use the content is implicit for the purposes of preparing the bid)

This is an issue that comes up frequently with my clientele as I include explicit ownership rights language in my proposals. It’s easy to assume that you own a design that uses your material as part of a bid, or a photograph that someone took on your behalf. But you also have to remember that you are commissioning someone to be paid for the work you are requesting, and that most firms are going to balk at relinquishing creative ownership rights of a losing bid. Keep in mind that if you use that 20% without permission, it may cost you more than what you are paying for the other 80%.