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 companies sometimes overlook a critical step in the process: ensuring they own the intellectual (IP) they’ve paid a marketing team to develop.
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 chapter of the American Advertising Federation and recently shared her expertise at a meeting of the International Association of Business Communicators.
Intellectual property is a broad term that applies to trademarks, copyrights, patents and trade secrets. One of the biggest legal minefields in marketing relates to the use of 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? Test your knowledge of intellectual property issues in marketing.
1. Once a client pays for creative work, he or she owns 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.
2. 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.
3. Agencies own the work of the freelancers they hire to develop campaigns 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 the work.
IP 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.”
The bottom line for smart marketers: You might love your creative marketing campaign, but you might not own the rights to it. By taking these simple steps, you can ensure that you do.
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Jean M. Gianfagna is a marketing strategy expert and the founder and president of Gianfagna Strategic Marketing which provides marketing strategy and creative services to leading business-to-business and consumer marketers. Read her blog for more marketing tips at http://www.gianfagnamarketing.com/blog.