Protecting Your IP During Client Proposals

For creative professionals, building new client relationships can sometimes feel like an occupational hazard. It’s a delicate dance, finding that balance between showcasing your talents and safeguarding your hard work, all while appearing accommodating and approachable.

No one wants to put up unnecessary barriers, especially in the early phase when you're still courting a potential client or bidding on a project. Unfortunately, however, it’s not unusual for people to share ideas from your proposal with colleagues, superiors, and yes, even other creatives competing for the same job. Whether it’s intentional or not doesn’t really matter; the outcome can put you in an unfair situation, regardless.

Crafting compelling client proposals takes time, and as we all know, time is money. The work we do demands originality and imagination, and that intellectual property must be protected.

Thankfully, a middle ground does exist. In this article, we explore some of the ways you can foster open communication while still protecting your creative output. We took the extra step and consulted with a qualified business attorney, ensuring that the strategies we present are not only practical but also credible.

IP Protection: What Are My Options?

So, you understand why it’s important to protect your intellectual property (IP); maybe you’ve even been burned before. But where do you start?

Well, you can have potential clients sign a non-disclosure agreement, or “NDA,” as these are legally binding contracts that hold weight should an issue or allegation arise. But let’s be honest, that feels pretty heavy-handed and formal – especially in situations where you're bidding on smaller projects or just trying to establish a positive relationship.

Thankfully, there are some “softer” legal protections and simple best practices you can consider to both signal your professionalism and protect your intellectual property.

1 - Confidentiality Notices

While it doesn’t provide the same level of protection as a full-blown NDA, you can add a confidentiality notice to your existing project proposal or bid to help prevent unwanted disclosure.

This statement can be placed on the front page of your SOW or at the top of a client email, and simply state that “all information shared during the bidding process is confidential and should not be disclosed or used without permission.”

Better yet, consider positioning the agreement as mutual, indicating that both parties agree to keep discussions and information under wraps. This approach can help get ahead of any concerns the client may have about seemingly one-sided confidentiality obligations.

2 - Common Law Copyright Notices

Did you know that, in the United States, your creative work is under copyright protection as soon as it is “fixed in a tangible form”? This includes being written down or recorded.

While a formal copyright registration – the kind that goes through a government agency – will provide more robust protection, you can still reap some common law benefits just by slapping a notice on your proposal. And, yes, this can be as simple as putting "© 2024 Your Name/Your Business Name” at the bottom of the document or email.

“The copyright notice on the submission signals that it should not be shared, reproduced, or modified without your permission,” explains Melody Lankford, a business attorney with nearly 20 years navigating intellectual property law.

As our expert on this topic, Melody reminds creative professionals that while common law copyright notices can help deter people from infringing on your rights, they do not allow you to seek monetary damages in court. For that, you would need a federal copyright registered with the U.S. Copyright Office.

Still, the notice is a clear indicator to potential clients that you assert ownership over your ideas – and you know your rights.

Think of it like putting a Beware of Dog sign in your front yard. Even if your friendly pup is highly unlikely to go after someone, a person with bad intentions might not be willing to take the risk and find out.

Beyond potential clients, the blunt reminder of a © symbol could also prompt someone else who comes across your creative work to do the right thing and respect your rights -- similar to how a photo lab won't print watermarked images without the photog's permission.

Additionally, because your notice includes the year, it serves as evidence of when the work was created. This could be useful if there’s ever a dispute over authorship or infringement.

“Cases of copyright law are very fact-specific,” Melody adds. This is why it’s so important to speak with an attorney to determine what legal recourse you may or may not have if you believe your creative work has been stolen or misused.

3 - “Proprietary” & “Competition Sensitive”

Maybe the above methods feel a little too assertive for you. In that case, a very simple strategy you can employ to better protect your IP is to identify sections within your proposal that contain proprietary information and/or specific details that could give competitors an edge if they were disclosed.

For example, proprietary information could include your creative vision, unique storytelling approach, or any innovative techniques you plan to use. Competition-sensitive information could look like your pricing strategy or any strategic insights you have into the client's market.

To use this technique, you could place a header above these sections saying "Proprietary Information – Do Not Distribute," "Competition-Sensitive," or something similar. This language signals to the client that these sections should be handled confidentially.

Common Sense Strategies to Better Protect IP

In addition to the legal-minded protections mentioned here, there are several “common sense” strategies you can start enacting immediately to better protect your IP during client proposals:

• Document Everything. Keep thorough records of all communications, project proposals, and creative materials shared during the bidding process as they could serve as evidence of ownership.

• Limit Disclosure. Showcase your abilities and ideas, but try to avoid divulging any proprietary details during bids to safeguard your work. For example, rather than giving a line-item budget breakdown, just provide a summary estimate.

• Be Choosey. “Be selective in choosing your client base – and trust your gut,” says Melody. “If you get the feeling that someone isn't trustworthy, adapt your behavior to protect your interests.”

• Educate Clients on IP. Take the opportunity during client discussions to stress the importance of mutually respecting creative ownership. This helps build trust, and showcases your professionalism and integrity.

What To Do If the Worst Happens

Despite precautionary measures, intellectual property theft can still occur. So, what legal recourse do you have?

Well, first, it’s important to point out that “you would have to sue or enter into mediation or arbitration to enforce your rights,” explains Melody.

If you’re considering legal action, then you’ll need to consult with a qualified business attorney or commercial litigator – one with experience in intellectual property law. Be sure to thoroughly research them ahead of time, and bring all documentation and evidence of theft to the meeting.

The attorney can advise you on your legal options, whether that’s sending out a cease-and-desist letter, negotiating a licensing agreement, pursuing the matter in court, or something else entirely.

Obviously, this option can get messy, and without any direct evidence, it may not be worthwhile.

“The key takeaway, then, is to know your audience and their reputation in the industry,” says Melody. “Do they have a reputation for walking all over smaller or solo companies? I would vet the potential customer just like they're vetting you.”

Remember, early client interactions are akin to dating – meaning you should watch for red flags. If a potential client is excessively demanding or dismissive, consider how they might behave once money changes hands. 

Protecting your creative assets doesn’t need to be cumbersome or stressful. Applying any one of these methods can help prevent a serious headache down the road, and give you peace of mind during these initial exchanges.

Heads up! This blog post isn’t legal advice. These are methods other professionals have found useful, and they're meant as general information only. If you have questions or worries about IP protection, it’s best to talk with a lawyer to get advice that’s tailored to your specific legal situation.