Good Law Versus Bad

Great advertising is a communication that achieves the client’s objectives. It has to aim at the twin goals of impact and relevance, expressed through brilliant and well-executed ideas.

So if the key components of great advertising are understanding (of the client’s objectives and market) and creativity (the idea and its execution), are legal contracts and frameworks important? Aren’t they in fact the antithesis of creativity, something that simply gets in the way of making great work?

Quite the opposite. The right legal/contractual framework is in fact an essential component of a fertile environment for great advertising, but only if it comes with an avoidance of the negative ways the law has impacted on other creative industries.
This is something the UK commercials industry has got right, the strongest evidence for which is the UK’s reputation for brilliant advertising.

The central purpose of a contract for any service should not be to tie the other party up in legal knots but to ensure that what the delivering party (the production company in this instance) think they are responsible for and delivering is the same as what the receiving party (agency) thinks it is receiving. There is simply no other way to do this than with a standard contract which sets out who is responsible for what and provides a checklist to minimise the prospect of anything being overlooked.
To take one example, specialist insurers can write their policies to reflect the risks the production company and agency each assume under the standard contract. A one off contract on the other hand can have any insurance obligations it likes, but if the parties don’t actually have the insurance cover specified, the protection the contract provides is illusory.

How does this help make advertising better?

Firstly, it minimises the time and money spent in putting contracts together, reviewing them and negotiating changes, allowing these resources to go towards making the best possible commercial. It also provides clarity, reducing the scope for misunderstanding, mistrust and conflict that generate defensive corporate behaviour, which truly is the enemy of creativity.

It’s helpful to look to other businesses for context.

The construction industry is defensive in that it prioritises undertaking exactly what was agreed at the outset over doing the best possible job. Anyone who has tried to have work done to their home will be familiar with the inevitable conflicts over instructions given, negotiations as to what is included in the price, with a builder whose central objective is often to generate extra charges.

Defensive contractual behaviour has had a particularly negative influence on doctors, and indeed lawyers themselves. In those professions, the concern about being sued for negligence is such that every alternative has to be given by the practitioner, setting out the advantages and disadvantages of each and then writing a note for the file as evidence such advice was given. The poor client/customer probably most wants a course of action to be recommended to them by the expert, but he can’t give one. Instead huge amounts of time and effort are wasted on setting out every alternative.

These negative practices have negative outcomes. The surgeon is afraid to take the bold course that his judgement tells him carries the best prospect of success, because if it goes wrong he will be subject to criticism and worse.
So contracts, if applied unreasonably or negatively, in fact fail the very people they purport to protect. The patient in the above example has been ‘protected’ out of having their life saved.

The commercials production industry has so far managed to steer a path through these obstacles and concentrate on doing the best possible job. Whatever issues arise, whatever time and budget pressures exist, production companies and agencies embark upon shoots determined to do the best possible job. They don’t look to deliver the minimum possible against the spec (in the form of the script and treatment) but to over-deliver to create the best film possible.

Production companies and agencies look for creative solutions and opportunities right up to and including the shoot itself. They can only do that in an atmosphere of collaboration and free from the threat of being subjected to a negative application of the contract.

We are fortunate to work in an industry that has applied the sensible parts of the law while avoiding the disadvantages. This is something the industry should be extremely careful to uphold and preserve, unless we want to end up like doctors, outlining every possible shot to the client while being careful to leave him or her in the dark as to which might work best.

Commercial production is far from a perfect industry, but in fighting to amend and mitigate the bad aspects of our working environment, it’s only right that we acknowledge the good.