Broadcasting Telecasting (Oct-Dec 1957)

ADVERTISERS & AGENCIES continued NEW SCHICK TRICK PULLED OUT OF BAG • Calls ad idea 'public domain' • 'Experts' back firm's claims As the smoke began to clear last week following Federal District Judge J. Cullen Ganey's granting of temporary injunctive relief to Warwick & Legler in that agency's battle with Schick Inc. for custody of ideas [Advertisers & Agencies, Oct. 28], new facets of Schick's position came to light. Among them: • The claim by Schick that the disputed "cotton-pickin' idea" for tv and other ads actually had been conceived by another agency some time before Warwick & Legler presented the proposal to Schick last December, and that subsequently, the idea became "public domain." • Schick's contention that on strictly definitive terms as understood by advertising "experts," Warwick & Legler cannot claim it incurred out-of-pocket expenses in formulating the unused cotton idea and that the 15% commission received by W&L for Schick copy constitutes payment for "all" ideas conceived by the agency during its 18-month relationship with the advertiser. (Schick is countersuing to recover $1 million in commissions paid to W&L plus $50,000 damages [At Deadline, Oct. 28]. Schick's position was disclosed in one of its pleadings before Judge Ganey in Philadelphia and made available last week in reply to W&L arguments reported earlier. Continued Madison Avenue interest in the case was assured with a full-page color advertisement by Benton & Bowles for Schick that embodied the "cotton" theme and appearing in the Nov. 12 issue of Look magazine, on the stands last Tuesday. The Look ad. which was ordered before the court's decision enjoining both Schick and B&B from using the disputed idea, was a print version of a filmed commercial placed by the agency on Dragnet on NBC-TV Sept. 19. Also learned last week from the Schick brief: In October 1956, a Grey Adv. copywriter named Kenneth Redford conceived a similar cotton idea and in early November submitted this idea to Mennen Co., a Grey client, on behalf of its pre-shave lotion, used by electric shaver owners. Later that month. Mr. Redford's idea also was submitted — through Grey — to McCannErickson. Mennen's agency for its aftershave lotion. In both instances, the idea was rejected. According to the brief, Mr. Redford's idea and its perusal by two other agencies and another client first came to Benton & Bowles' attention when Mr. Redford left Grey and sought work elsewhere. During the course of Mr. Redford's employment search, his presentation book (containing the cotton idea layout and sketches) was seen by "at least" 8 to 12 other agencies, and thus, contends Schick, "the idea is now in the public domain." Thus, Warwick & Legler, says Schick, has no legal grounds on which to claim ex clusivity. Warwick & Legler first approached Schick with the "cotton test" Dec. 6, 1956, or two months after Schick claims the idea was first formulated by a Grey Adv. employe. According to Schick's counsel, Mr. Redford roughed out his idea on or about Oct. 18 that year; Warwick & Legler's version was conceived between April 10-15 this year and presented to Schick April 29. Warwick & Legler made a workprint of its idea for tv usage June 14 and submitted it to Remington-Rand on June 26. One of the weapons in the Schick arsenal brought out during the course of the 2Vi -day court hearing in September was the Thomas vs. R. J. Reynolds Tobacco Co. case of the 1930s, which involved a more or less similar conflict of ideas. On Oct. 22, 1934, the plaintiff in this case submitted to Reynolds in writing a rough draft of a new ad campaign stating in effect that Camel cigarettes were the most economical brand since they burned approximately twice as long as rival brands. Reynolds immediately began using the idea and when it was taken to court for failure to adequately compensate the plaintiff, the tobacco firm introduced evidence that it had received a similar idea from a third party the year before in 1933. The decision went to Reynolds. As regards H. Paul Warwick's contention that the 15% commission paid his agency by various media for published ideas does not entitle Schick to ownership of all ideas conceived by the agency, Schick called as witnesses two advertising "experts," both of whom held that Mr. Warwick was not on solid ground. The first was Morton J. Simon, author of The Law for Advertising & Marketing, who maintained that when an agency receives its 15% commission it is charging for all ideas, including those not used by the client, and that, therefore, these ideas are the property of the client. The Warwick & Legler-Schick Inc. termination agreement stated that "after the termination of our association, Schick shall have the absolute right to use . . . any and all advertising . . . ideas . . . and other advertising material which (the agency) prepared for Schick . . . and charged Schick for. . . ." It also declared that "any and all unused or unpublished advertising, plans and ideas prepared by us (the agency) and paid for by us remain our property." The second witness, Dr. William T. Kelley, associate professor of marketing, Wharton School, U. of Pennsylvania, stated that the industry-used terminology of "charged for" as referring to agency services encompasses the 15% commission. Mr. Simon, as regards the phraseology "paid for by us," declared that this means "paid for by the agency to outside suppliers" (film companies, printers, etc.) and not paid for by the agency "in the form of wages or salary or compensation" to the agency's staff. The controversial tv film prepared by W&L on June 14 for subsequent presentation to R-R was made within the agency, Schick told the court. Furthermore, Schick's counsel claimed, when W&L first approached Schick in December 1956 with the idea, it had not set up elaborate presentation devices requiring outside help (as Benton & Bowles had done). Thus the agency could not claim having paid for something outside of the realm of agency salaries. Felix H. Kent, counsel for Warwick & Legler, reiterated Thursday his client's contention that it bases its case on a special contract. "We are not basing our case on industry practice alone," he said. HOW PEOPLE SPEND THEIR TIME There were 123.417,000 people in the U. S. over 12 years of age during the week Oct. 20-26. This is how they spent their time: 67.6% ( 83,430,000) spent 1,839.6 million hours watching television 53.8% ( 66,398,000) spent 957.7 million hours .. listening to radio 81.2% (100,215,000) spent 392.1 million hours reading newspapers 29.3% ( 36,161,000) spent 156.9 million hours , .. reading magazines 26.4% ( 32,621,000) spent 380.7 million hours watching movies on tv 24.5% ( 30,240,000) spent 126.0 million hours attending movies * These totals, compiled by Sindlinger & Co., Ridley Park, Pa., and published exclusively by Broadcasting each week, are based on a 48-state, random dispersion sample of 7,000 interviews (1,000 each day). Sindlinger's monthly "Activity" report, from which these weekly figures are drawn, furnishes comprehensive breakdowns of these and numerous other categories, and shows the duplicated and unduplicated audiences between each specific medium. Copyright 1957 Sindlinger & Co. * All figures are average daily tabulations for the week with exception of the "attending movies" category which is a cumulative total for the week. Sindlinger tabulations are available within 2-7 days of the interviewing week. SINDLINGER'S SET COUNT: As of Oct. 1, Sindlinger data shows: (1) 104,470,000 people over 12 years of age see tv (84.6% of the people in that age group); (2) 40,423,000 U. S. households with tv; (3) 44,440,000 tv sets in use in U. S. Page 44 • November 4, 1957 Broadcasting