Saturday, September 26, 2009

7125: PHD And BBDO Sued For Stealing Idea.

From The Miami Herald…

Ad exec’s suit claims his idea was stolen

By Scott Andron

Three years after he sold a country music song to Kmart, a Broward advertising executive hoped to sell his latest “advertainment” concept, a reality TV show about pickup trucks, to Dodge.

But now Jay Schorr says the automaker’s New York advertising and media agencies used his idea without paying him a cent. So he’s suing PHD Network and BBDO for more than $15 million.

Schorr, president of TMR Multimedia in Hallandale Beach, said he proposed his ideas to Chrysler last year, and the automaker asked him to talk to the defendant firms. BBDO is an international ad agency network, while PHD specializes in media planning.

The agencies pumped him for information about his ideas, he contends, and led him on with the prospect of compensation down the road. Then, Schorr said, the other firms used his ideas, which included real-life tough-guy truck buyers competing at tasks like hauling big loads and towing heavy objects, in Internet videos and television ads.

But, he said, they paid him nothing.

The case was filed in Broward Circuit Court in July, but moved to federal court at the request of the out-of-state defendants, both units of Omnicom Group—a Madison Avenue advertising and marketing conglomerate and one of the largest firms of its type in the world.

Through one of their attorneys, Guy Cohen of the New York-based law firm Davis & Gilbert, the defendants declined to comment on the case.

But in court papers filed last week, the New York firms said they came up with the “Dodge Ram Challenge” marketing campaign on their own, the campaign is different from TMR’s proposed “Pulling for America” campaign, and the case should be dismissed.

It has tentatively been scheduled for trial in federal district court in Fort Lauderdale in June.

Local intellectual property lawyer Ury Fischer said Schorr may have a tough time winning his case.

First of all, while the written expression of an idea—a movie script, for example—can be copyrighted, the idea itself generally can’t be. That means creative professionals need to use confidentiality agreements to protect their ideas while making a pitch.

“Just picture me incredulous,” said Fischer in a telephone interview after reading TMR’s complaint.

Fischer, who works for the Coral Gables law firm Lott & Friedland, said TMR’s biggest problem may be the lack of any written contract promising compensation or confidentiality.

Schorr said he first dreamed up the idea of a product-focused reality TV show back in 1997, but set it aside for future use.

In the meantime, he came up with another concept blending advertising and entertainment. In 2005, he sold a country song, I Found Love in a Kmart Store, to the retail chain. Kmart had country star Darryl Worley record it, and the song was used in an ad campaign.

In May 2008, Schorr dusted off the reality TV idea and pitched it to Chrysler, which, he said, asked PHD and BBDO to review it. These two firms then “eagerly and actively sought out all the details” of TMR’s idea, according to the complaint.

In June, after some preliminary discussion with PHD, TMR developed “Pulling for America,” a proposed series of webisodes and associated TV ads in which real-life truck buyers would drive 2009 Dodge Ram pickups in competitions highlighting the vehicles’ toughness.

After some additional back-and-forth, TMR said, a PHD staff member told the Hallandale firm in July that the proposal had been “green-lighted.” But when TMR tried to discuss payment, the firm was either put off or ignored altogether, Schorr said.

Then, in September 2008, Chrysler unveiled the “Dodge Ram Challenge” a reality video series broadcast via the Internet. TMR said the project bore a striking resemblance to its “Pulling for America” plan.

Meanwhile, Chrysler, which is not a defendant in the case, used similar ideas in television ads during the National Football League playoffs and other sporting events.

A 2000 case, All Pro Sports Camps v. Disney, would seem to offer some hope for Schorr.

In that case, a small firm claimed that it pitched the idea for a sports park to Disney, which stole the idea. An Orlando jury ordered Disney to pay $240 million to the company. Disney appealed, but later settled for an undisclosed amount.

Unfortunately for Schorr, the Florida Legislature has since passed a law requiring written evidence of a contract to prove such a case.

“This statute does throw a wrench in the gears for the plaintiff,” said Michael Chesal, an intellectual property lawyer with Peretz Chesal & Herrmann in Miami.

But Schorr’s attorney, Robin Sommers of The Ticktin Law Group in Deerfield Beach, said a contract was plainly implied.

“They asked Jay what he would be looking for in compensation,” Sommers said. “It doesn’t get any clearer that there was an intent on both sides to enter into a contract.”

To show that the Dodge Ram campaign was innovative, TMR’s complaint notes that Chrysler itself described it as “game-changing.” The campaign also was mentioned in several trade publications and websites.

David Vinjamuri, the head of a New York-based training firm for marketers, reviewed it on his blog. “It was a nice spin on a few things that had been done before,” said Vinjamuri, president of ThirdWay Brand Trainers, in an interview Thursday.

Vinjamuri remembered Schorr’s Kmart song, and said small firms like TMR sometimes can be more creative than larger shops. And it’s not unusual for the little guys to claim the big guys stole their ideas.

“The big firms pretty regularly get accused of it,” he said.

For his part, Schorr sees the case as bigger than himself.

“The truth of the matter is, small business has been screwed so royally, this is just another instance of corporate greed,” he said. “It’s horrible. I think we’re fighting on behalf of all small businesses.”

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