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Can you really protect creativity?

Hotel Indigo, a boutique hotel brand under InterContinental Hotels & Resorts (IHG), has lifted an artist’s work without permission. The hotel then reproduced and used the artwork as part of the hotel’s marketing messages, to the dismay of the artwork’s creator Richard Lee Xin Li, an architect and illustrator.

Lee stumbled on his uncredited artwork via The Shutterwhale, a lifestyle blog that claims to independently review “hotels, loyalty points and travel”.

According to Lee, he was contacted by Master Contract Services but there was nothing conclusive agreed upon and that “the contact has not been contactable due certain reasons given”.

While IHG is the operator of the hotel, the key parties are the developer, Eco-id and Master Contract Services. Lee believed that “IHG is quite likely, an innocent party in this incident.” The images bearing Lee’s artwork has since been removed from IHG’s site.

Further, IHG vice-president of operations in Southeast Asia Leanne Harwood told The Straits Times: “We understand that in the artist’s impression of the mock-up room for the hotel, imagery by local artist Richard Lee was unknowingly used. The owner has reached out to him with apologies and further discussions will be held to ascertain next steps.”

Just spotted this through a friend. Really unpleasant to find out Hotel Indigo Katong has taken parts of my Katong…

Posted by Pok Pok & Away on Tuesday, December 8, 2015

While such instances of uncredited creativity is rampant in the space of creative arts, the issue extends to the ad world too where clients don’t seem to mind recycled creativity or idea-theft.

According to Formul8 managing director, Fiona Bartholomeusz, such instances of reproduced or uncredited art is becoming increasingly prevalent.

She said that while the reproductions may not reflect blatant copying, some do take creative liberties in changing one or two aspects of an original artwork just enough to “create” a new concept. “Better yet, you get clients who tell you that their idea (which you proposed to them) was coincidentally something they thought of before they met your agency!”

“In practice, we all know that some pitches are rigged, i.e. the client knows who they want to work with and just need to fulfill some numbers for transparency. It also means that they do pick up ideas from other agencies they know they won’t be hiring. Intellectual property sadly doesn’t hold sway with regards to a great idea.”

Are there any creative rights at all?

To better “protect” one’s creativity, notwithstanding the legal rights that should be automatically conferred to it, Bartholomeusz advised creatives to “vet who you court and what you pitch for”.

She also called for the need to dispense “polite reminders” about IP rights to clients and prospective clients alike.

Frankly, there is very little agencies can do and we don’t really have legal protection or a governing body that protects our rights. It boils down to working with the people you know and trust.

Meanwhile, Shaun Sho, creative director of Neighbor, said there could be a miscommunication issue between Hotel Indigo and Lee where the hotel did not inform the illustrator that his work was used in the mock-up stage.

However, since the image was used for the hotel’s publicity and marketing messages, it was likely an infringement issue more so than an incidental occurrence.

“For Neighbor, when we present ads and use images created by another photographer for a presentation, we would inform the clients to let them know of the copyrights of the items included at the presentation stage.”

Still, Sho agreed that some clients are prone to recycling designs created for work commissioned for previous years. He said that to re-use such work, clients should extend the professional courtesy of letting the agency know in advance, as the latter has the right to charge them extra for any additional year of using their original or adapted designs.

Read: Exposing bad pitch behaviour

Sho highlighted that while many clients are aware of the IP rights associated with artworks, not all would be open to negotiating fairly for original artworks.

“This case may cause a minor glitch for IHG. In my view, it was probably a miscommunication in which the parties can take a more proactive approach to settle it with the illustrator, that helps to settle the matter in amicable manner.”

On the other hand, Bartholomeusz said while it was an embarrassing situation for a global brand, the guilty party would most likely be reproved with a minor slap on the wrist.

“They’ll probably settle by paying the artist a small amount and in a few weeks it will all be forgotten. Remember the incident about a government agency that ripped off a small agency’s creatives and re-used it with minor design tweaks the next year and didn’t pay the agency?”

Unfortunately there will always be another sucker waiting to pick up the business. All this means is that we are killing the industry by promoting and encouraging bad behavior. In many ways, we only have ourselves to blame.

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