Ask an Art Buyer: Are Treatments Copyrightable?

by Heather on August 16, 2009

We have covered this ground before but local heavy hitter rep Jooli Kim asks a rather pointed set of questions about Treatments:

Do agencies view submitted treatments for a job, stating an artists vision and process [with references] as copyrighted? Or does the agency feel they can take liberty with these treatments and use the information even if the artist that is submitting is not hired for the job? Like, that was a good idea/ proposal, why don’t we use that, even though we hired this guy? I ask because it’s happened a few times in my career. Where one of my artists have submitted treatments with image references and they have not been given the job but those references and methods seem to be the in the final product.

Is it merely all a coincidence and I, along with others that have seen work copied are just paranoid?

I know this is a risk one takes when submitting treatments and in the end it’s difficult to prove as well as very uncomfortable if one approaches the agency. Perhaps this is a mute point but to be innovative, creative, risk-taker is hard enough… and then to not be hired and in some cases the agency opts for the more seasoned photographer/ director, is disheartening. But what can be done? Because there is a reverse scenario as well, where you are hired for a job and the client/ AD says lets try this and it could have been for the other guy’s [the one that didn't get the job] treatment.

In the year and a half since I wrote my first post on this issue (Jeez Murphy have I been blogging that long?), not much has changed in my outlook on Treatments.

I believe that it is fair to query whether the Art Department is fully doing their job when they ask photographers to send in treatments (the argument states that the agency should know exactly how they want the idea executed and not rely on the photographer to fill in that part of the equation). On the other hand, I think this validates the photographer’s great capacity to be a partner in the success of a campaign (read: needs to be fairly compensated).

Copyrightable? I’ll leave that to the courts. But I think it goes without saying that what Jooli describes is dirty pool and the AB will help, to the best of her abilities, to ensure that it doesn’t happen. If a photographer brings an idea to the table, that idea should remain hers alone.

But wait a minute. Here’s a tricky situation that can happen despite the best of intentions. AB wants to introduce a newbie into the mix (who’s perfect for the job in her mind) so asks Photographer A to join in the treatment process. Agency says sure, no skin off their nose to ask for another pitch. Great news: A gets face time with the Agency and Agency loves A’s idea but… they are concerned that A’s not up to the task and wants to give that approach to established Photographer B. What’s a well intentioned AB to do? The only thing she can do: fight, fight, fight and pair A up with a fantastic production team and shephard that job along to ensure that she’s set up for success.

For a junior photographer, a treatment (or a test) can be a great way to show the agency what you can do and really grab their attention (if it’s a good treatment, it’s better than a promo any day). But it’s still a leap of faith on the agency’s part to award this job to someone new. Again, it’s the AB’s job to help mitigate this risk.

I asked Photo Producer Cecilia Marshall (check out her fab new blog Fresh Produce here) to weigh in on this issue:

I have not had photographers do treatments for projects. Over a 4 year period at BBDO I only had 2 photographers present treatments and they were more about the post production. My approach to bidding a job and picking the photographer is done through phone calls. We always discuss the photographer’s approach over the phone, usually a conversation with the Art Director, the Photographer and myself. If the job is larger sometimes we have multiple conversations. I have had times where the Art Director takes a piece of one photographer’s approach even though they did not get the job but it’s mostly been production ideas (For example…”It would be most time efficient to have two lighting setups in the studio to be able to move back and forth between angles”)

Sorry I can’t be of more help on this topic but I’d be interested in knowing if other Art Producers in the New York are getting actual treatments for most jobs.

Yes, NYAB’s, do tell…

And for a quasi-legal perspective (see disclaimer below), I asked photo consultant and law student, Leslie Burns-Dell’Acqua for her thoughts:

I have to give the big disclaimer that whatever I say is NOT legal advice and I am not a lawyer–this is because I am a law student and can get in trouble for giving “legal advice”. If you publish what I’m saying here, please include the disclaimer so I won’t get in trouble. (Done -HMAb.)

Anyway, in the US, ideas are not copyrightable. Only the “tangible” (digital counts) manifestations are. This is why your question sits in an icky grey area.

For example, (1) style is not copyrightable, so if the photographer submits multiple images (like from her/his portfolio or files) showing stylistically how s/he would approach the project, that stylistic approach would not be legally protected. The individual images would be protected, but not the style or the approach.

However, (2) if a photographer presented rough images or sketches for that particular project, those would (pretty likely) be copyrighted and if the client went on to make images based on those, that would be an infringement. Note the bit about sketches… just because the medium is shifted does not mean that the work is “new” and not derivative. It would still probably be an infringement. There are plenty of cases where someone made a painting or a sculpture based on another work in another medium (sketch, photo) and lost a bundle in a copyright infringement suit.

On the other hand, (3) if the photographer and the client only talk about ideas, well, speech isn’t copyright-protected and the client can use those ideas without infringing.

Ethically, of course, scenarios 1 and 3 above would be just plain shitty of the client to do. So would 2, but that one would be illegal as well.

Of course, this is only my personal opinion, like I said before.

I think there are lots of people playing fast and loose with IP and it’s up to each individual to do the right thing. AB’s can certainly help manage everyone’s conscience but clearly, there is only so much we can do. Especially when, in Canada at least, there are so few of us.

{ 5 comments… read them below or add one }

Sylvia Verkley August 17, 2009 at 12:10 pm

Two years ago we were invited by an agency to collaborate on developing a proposal for a client. The task: shoot a series of life-style set ups so that they could begin to build their own image ‘library’. We submitted a proposal, including quite a substantial approach to creative execution. The agency in turn presented our proposal to their out of town client.

The end client then showed their fav. photographer (who lived in their town) our whole proposal including estimate. The photographer couldn’t resist pointing out that if the client went with us they were getting seriously “ripped off”. Naturally, he got the job.

We’re not sure of the final results, however, the agency including its President were mortified. They asked us to submit an invoice for our creative ideas and time spent compiling our proposal, and they saw to it that it was paid. No lack of integrity there.

Since that day, I put a tiny, but clear © (option G) beside our name and the date on all of our proposals, as a deterrent. It sends a message that we’ll be paying attention.

However, if you’re about to present something that you think is really out there and you want to make sure to protect it, draft up a non-disclosure agreement and get a signature on it before you present it. As Jooli points out, not always comfortable to have these discussions, but it gets easier after you’ve been burned once or twice.

Ken Rubino August 17, 2009 at 9:33 pm

and therein lies one of the problems associated w/ ‘discussing photographic styles’…. let the image do the talking ! quite honestly, it’s not anybody’s business but mine as to how the final image comes about ! If I’m doing something that a potential client likes then it’s an agent’s or AB’s job to sell it…….without giving away techniques or style/lighting tips……or did I misinterpret the original comments? And ‘Yes Virginia,’ there are unethical people in EVERY business ! Ken

Heather August 18, 2009 at 1:26 pm

Great comment Ken but to clarify, a treatment usually doesn’t cover technique but rather a specific interpretation of a broader brief. I think your point is still valid but I wouldn’t expect to see lighting tips in a treatment.

Jim Goldstein August 21, 2009 at 1:34 pm

Thanks for the great write up and compiling the feedback of Leslie and Jooli. This was my understanding as well. A lot of discussion has surfaced in the photographic community as of late with Sony lifting a concept from another photographer Phillip Toledano’s & PS3 . Always a timely subject.

Hasnain Dattu September 2, 2009 at 10:10 am

Just had a visual treatment taken right out from under me and used with another photographer.

Actually it most likely happened this way. Portfolio was originally called in for a campaign. Pretty big one at that. We (the photographers in contention) were asked to come up with a new visual treatment for shooting on white. I came up with a fashion orientated light that was rich and bold. I was not considered. Job went to a shooter who had a more mainstream approach..

A year later the same contract was up and this time I was not in the running, but the look I presented the year before is what they are executing right now.

Copyright infringement, I don’t think so. People and time and needs change. The people now involved probably were not aware of my original submission.

Its part of the game.

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