I watched the opening scene of Mad Men (Season 7, Episode 1) and thought, “Wow, Freddie has really gotten his act together.” His Accutron pitch, so polished, so vivid, so moving. Don Draper himself could not have done better. Turns out Don couldn’t have done better, but only because it was revealed later that Don himself was feeding Freddie pitch ideas to use as a freelancer.
But what if the facts were slightly different? What if Don and Freddie were just two advertising guys eating sausage hoagies over lunch, casually sharing pitch ideas? And then what if Freddie took one of Don’s ideas and turned it into a successful pitch for which Freddie received credit and revenue? Could Don sue Freddie?
Don might consider a lawsuit for conversion under the theory that Freddie deprived him of the value of his property–his ideas–without consent. But Ne
w York courts, like other jurisdictions, do not recognize conversion as a viable theory to recover intangible property such as intellectual property. Similarly, trade-secret action would likely fail because sharing an idea that may have commercial value with a potential competitor does meet the necessary proof element of whether the plaintiff took reasonable steps to maintain his idea’s secrecy.
A copyright infringement lawsuit would likely fail for similar reasons. Federal law extends copyright protection to works “fixed in any tangible medium of expression.” Don, however, could possibly pursue a common-law action against Freddie for misappropriation. This theory was at the heart of a years long legal battle between Taco Bell and a small design agency that claimed it invented the idea for the Taco Bell chihuahua.
If Don and Freddie were sophisticated–ha!–either one could have held an insurance policy that covered “advertising injury,” generally defined as the use of another’s idea in your advertisement or infringing on another’s copyright in your advertisement. Freddie could have invoked such a policy in case he had to defend himself against Don’s copyright infringement action. But Freddie needn’t worry. Don would likely have no viable action against Freddie, and the lesson is to keep one’s mouth shut until that brilliant idea has actually materialized into something tangible that merits legal protection.
Going forward, it’s worth noting that the current season of Mad Men takes place in 1969, before many of our current employment laws were even enacted. Title VII, however, was passed in 1964. As the season goes on, I’m sure my colleagues and I will be keeping an eye on Don’s replacement, Lou. Gladys Knight and the Pips? Oh my, such potential for race and gender discrimination lawsuits.
