The IP debate: Agency leaders on ownership, ethics, and legal grey areas

There’s this debate that the advertising and marketing industry talks about nearly every year: The idea theft. Agencies have long spoken about ideas getting stolen, doing unpaid work, and the many grey areas around creative ownership. But rarely, if ever, do these concerns or solutions come from the client side.

That's precisely why Social Samosa’s AgencyCon 2025 summit opened with this critical yet uncomfortable conversation. A panel of agency leaders joins in to share their perspectives on 'Who Owns the Idea? Creative IP, Pitch Theft & the Legal Battle Nobody Talks About.'

Moderated by Karuna Sharma, Associate Editor at Social Samosa Network, the panel brought together Amer Jaleel, Co-Founder, Curativity; Naresh Gupta, Co-founder, Bang in the Middle; Rafael Pereira, Managing Partner, Tinnuts LLP; and Umma Saini, CCO, Schbang to tackle the fundamental question: What will it take for the industry to respect creativity as intellectual capital?

The reality of creative theft

The panel opened with stark honesty about the prevalence of idea theft in advertising. Amer Jaleel, who has channelled his frustration into an online series called "Ittefaq" (coincidence), didn't mince words.

"Theft is part of the industry. First thing is you call it theft, don't call it anything else," Jaleel declared, explaining his choice of the word as a strategic brand name that wouldn't put him in legal crosshairs while still addressing the issue.

Jaleel drew analogies to illustrate the impact of idea theft. He compared it to taking investment advice from a fund house like Motilal Oswal, profiting from it, then moving the business elsewhere without compensation. 

"Our ideas are like that," he emphasised and continued, "The more we talk about it, the less it will happen."

Naresh Gupta brought the discussion into stark reality with his agency's recent experience with a healthcare giant. After creating work for the client and getting rejected, Gupta discovered the same concept, including identical words and pictures, was released by the client through another agency after their contract expired. 

Given this situation, Gupta advised, "Own it and make sure the world knows that it is your work and it is being stolen.” He, however, acknowledged the business costs of owning one’s ideas. 

The vulnerability of agencies became clear as Gupta explained, "As a creative agency, the only currency we have is ideas." Unlike data, which belongs to consumers, agencies' true intellectual property lies in what they create from that data, which includes the ideas, stories, and strategies that drive campaigns.

Umma Saini contextualised this vulnerability within the marketplace dynamics, noting that "the product is invisible in its first form" and easily manipulated. She emphasised that theft isn't limited to specific project types; it can happen during pitches, AOR conversations, or project deliveries. 

The key factor, Saini observed, often comes down to the ethics of the person on the other side of the table.

Legal realities and industry gaps

Rafael Pereira brought crucial legal clarity to the discussion with a fundamental distinction. He noted, "Ideas aren't protected in this country. We protect the expression of ideas." 

This highlighted a critical gap in industry understanding about intellectual property rights.

Pereira explained that copyright vests in creators the moment they create something, without requiring registration. However, he emphasised the importance of proving creation timing. 

"It's important to know who created it first." The challenge lies in distinguishing where an idea ends and expression begins, particularly when multiple agencies work from the same brief.

When discussing NDAs and contracts, Pereira noted that while oral agreements are legally valid in India, the burden of proof remains significant. WhatsApp chats, emails, and even phone conversations can serve as evidence, though he cautioned that contracts, whether express or implied, require clear communication trails.

The legal expert also warned that agencies now compete not just with each other but with technology. Pereira highlighted how artificial intelligence and other technological tools are already appropriating creative ideas, even when agencies hold proper copyrights. 

In this new reality, where technology companies can analyse and replicate creative patterns at scale, traditional inter-agency competition pales in comparison to the threat posed by automated systems that can generate similar creative expressions without human creators.

"The only way you're going to beat the biggest technology companies in the world is if you are going to start acknowledging your own IP," he stated. 

Systemic solutions and cultural change

There lies one problem in this situation. While larger network agencies can protect themselves and have the courage to disagree with a client, smaller agencies can’t afford to burn bridges, given that there is a cost to calling theft out. 

Umma Saini acknowledged the harsh reality that smaller players face significant risks when calling out theft, including potential loss of business and industry relationships. 

However, she argued, “There's a cost, but that's what makes it important to speak up." She highlighted the need for collective action. “We have to think of the long game.” 

This raised the question of what a smaller agency can realistically do when it finds itself in such a situation.

Amer Jaleel reinforced that the issue isn't necessarily about agency size but the culture. He recalled how the industry once had a culture where, when a work was released, the first question to arise would be 'Kis ki idea tha?' (Who’s idea was it?)." This created respect for ideas regardless of which agency produced them.

“It was an emotional bond with an idea and envy. There was a culture of respecting that idea. Everybody wanted to know that. That culture is lacking today,” Jaleel continued. 

Naresh Gupta was frank about the business implications, sharing how his agency lost two clients for being outspoken about theft. Yet he maintained that smaller agencies shouldn't be deterred, arguing that the industry's protection mechanisms are weak. Gupta shared, "If you have to protect, you have to protect yourself."

There have been conversations within the Advertising Agencies Association of India about including pitch fees to validate agency ideas two decades ago. However, the idea never took off because agencies themselves couldn’t agree to stand firm.

Gupta dismissed the often-discussed solution of pitch fees as unrealistic for India, noting it would only benefit large network agencies. The only country where the pitch is free is India, he observed.

Despite the challenges, the panel identified both immediate and long-term solutions. Pereira revealed the accessibility of legal enforcement, noting that registering an FIR for copyright infringement costs approximately ₹50,000 to ₹1 lakh. 

However, the panellists agreed that sustainable change requires cultural transformation. Umma Saini offered practical advice for agencies, stressing that while speaking up involves risk, "risk-taking can also be lonely," making forums like crucial for building confidence in doing the right thing. 

Her message to clients was direct: recognise that creativity still matters, standardise NDAs, tighten contracts, and don't commoditise creative work.

The panel concluded with Gupta's message to clients. "Be proud of the work you are doing. Own that work." When clients take ownership and pride in their creative partnerships, he suggested, conversations about theft become far less necessary.