First, the good news: You love the creative approach and materials your marketing agency developed for your new marketing campaign.
Now the bad news: It might not belong to you, even though you paid for it.
Many companies hire marketing agencies or freelancers to develop marketing campaigns and materials.
But marketers often overlook a critical step in the process: Ensuring that they own the intellectual property they’ve paid a marketing team to develop. And marketing agencies often fail to protect their legal rights to materials they’ve produced.
What are the most common intellectual property mistakes marketers and agencies make and how can you avoid them?
Here are some tips for your smart marketing strategy from an expert on legal issues in marketing.
What Intellectual Property is – and Why it Matters in Marketing
Sharon Toerek of Licata & Toerek is an attorney who specializes in legal issues related to marketing. She’s President of the Cleveland, Ohio chapter of the American Advertising Federation and Chair of the Council of Smaller Enterprises (COSE), an organization that provides business services and support to thousands of Northeast Ohio companies.
Toerek represents marketing agencies and marketers in intellectual property (IP) issues and she recently shared her expertise at a meeting of the International Association of Business Communicators (IABC) in Cleveland.
Intellectual property is a broad term that applies to trademarks, copyrights, patents, and trade secrets.
One of the biggest legal minefields in marketing concerns trademarks and copyrights. The key question: Who owns the rights to the intellectual property created in advertising and marketing campaigns? The client? The agency? The freelancer?
Many people think they know the answer – and they’re often wrong.
True or False? Three Common IP Marketing Myths
Test your knowledge of intellectual property issues in marketing. Are these statements true or false?
- Once the client pays for creative work, they own it: False. “The agency owns the rights to all the work it creates, even AFTER the client has paid for the work, unless there’s a written Work for Hire provision in the engagement agreement, a written assignment of completed work by the agency to the client, or a written grant of a license to use the work,” Toerek explains.
- Ideas the agency presents in a new business pitch belong to the agency: False. “If the agency doesn’t have an ownership and nondisclosure agreement in place before it pitches concepts to a client, the agency does not own the rights to the ideas it presents,” Toerek says.
- Agencies own the work of the freelancers they hire to develop creative for a client: False: Again, unless there is a written Work for Hire agreement in place between the agency and freelancer, the freelancer retains the rights to work they develop.
Intellectual Property Tips for Smart Marketers
Toerek advises every smart marketer and marketing agency to clearly state the terms of ownership of creative work in every agreement. “I’m passionate about protecting IP,” she states. “I believe it’s the lifeblood of our economy.
“Marketers should have standard Work for Hire and Assignment documents to use for all contractors, vendors, and freelancers who provide creative work on a project basis,” Toerek advises. “Don’t engage a freelancer or independent contractor without a written Work for Hire agreement signed in advance.
“If you’re an agency,” she continues, “a strong rights ownership clause should be in every contract you have with a client. You can and should agree to transfer the rights to the client but not until payment is made.”
Agencies also should have Work for Hire and Assignment documents in all their agreements with freelance contractors, she adds. Including copyright notices and copyright ownership clauses in all proposals is also a good standard operating procedure.
The bottom line for smart marketers: You might love your creative, but you might not own the rights to it. Be sure by protecting your intellectual property rights.