Wise up to IP rights: why agencies might own your creative content

Do you own the rights to your creative content? Vague contracts and confusing copyright laws have left many marketers in the dark over intellectual property (IP) rights. Craig Olugbode, managing director of Own My IP, explains the key issues and pitfalls in owning your own work.


Does your brand own the intellectual property (IP) rights to its own creative content? If your immediate reaction is, ‘Obviously – who else would own it?’, you wouldn’t be alone. Many brand guardians and marketing directors assume that if it’s their logo, their packaging, their website etc, then the rights to this content are automatically theirs.
The uncomfortable truth is if you’ve commissioned an agency to produce your creative content, your claim on its copyright mightn’t be as strong as you think – particularly if the agency outsourced the work to a freelancer.
Don’t have blind faith in contracts
You’d be surprised at how many client-agency contracts don’t hammer out the nitty-gritty when it comes to transferring copyright (in fact, you’d be surprised at how few clients and agencies don’t have any contract regarding transferring copyright).
Most client-agency contracts work like this: the copyright for a campaign – adverts, product designs, copy etc – are transferred to the client once the client settles the agency’s bill. But there are certain issues surrounding rights transfer that contracts are unlikely to cover. Things like:
• Work done by freelancers – unless the agency (or brand) has a written agreement stating that the copyright of the freelancer’s work will transfer to the client, in most cases the freelancer retains the rights over their own work.
• Unused creative work – when an agency submits work to a client, but the client doesn’t use all of it, who owns the unused work is open to argument. Unless the contract specifically states this work is the client’s property, the agency could potentially re-use or re-purpose the content for another client (or themselves).
• Performance-related agreements – agency-client contracts don’t always capture the specific conditions attached when an agency transfers copyright to a client. For example, an ecommerce platform where the agency reduces their fee in exchange for a percentage of the sales made using the platform; or when the creative agency behind an ad campaign is rewarded for how many sale it generates.
• Specific use for a piece of work – being upfront in the contract about what you’re going to use the agency’s work for can save you a lot of hassle. A recent example that illustrates the point is Leo Burnett, which took some flak from production company, Asylum, when a film Asylum shot for the agency (and received payment for) was re-made by another company and used in cinemas. Asylum went public that it was irked by Leo Burnett – not because it was claiming a legal right to the work, but because Leo Burnett had shown ‘bad manners’ by not letting them know their work was being re-shot by another agency.
Muddying the IP waters
We’re increasingly seeing instances where agencies are creating more complicated IP than just brand logos, visuals, packaging designs etc. And in these cases, they’re keen to retain the rights to all or part of the IP they’ve created. They then license the IP to clients as part of a performance-related fee package.
For example, an agency might want to retain the rights to a platform it’s created, which it then licenses to multiple clients – like a community platform, or an app that you can ‘re-skin’.
In instances like these, the copyright for some – but not all – of the agency’s work needs to be transferred. Tracking exactly who owns what is crucial in case a dispute arises.
As Justin Anderson, managing director and co-owner of design agency, Anderson Norton Design, says: “There are cases where we will produce work for a new company on a shared revenue basis. It’s useful to have a way to track what designs the client owns, and what we own.”
Make sure you’re covered
In IP terms, your biggest business risk is not owning the rights to your own brand – the logo, visuals, packaging, copy etc. If a dispute crops up, you’ll need clear proof of ownership – evidence that asserts all rights to your creative work have been transferred to you by the agency (or the freelancer).
So get an agreement in place that clearly details what work has (and hasn’t) been transferred to you. It will protect your brand’s investment in its creative work, avoid legal disputes over ownership, and eliminate the risk of any claims to profits derived from the brand’s IP.
As with anything legal, there are murky areas to be aware of. For example, if the agency uses a combination of work created by third parties – such as logos, colour schemes and designs for product packaging – it’s important you have proof that you own the rights to each individual element of work.
If you want peace of mind when it comes to IP rights, you need a contract that goes into the specifics of the IP transfer. The good news is there’s technology on the market that makes transferring copyright fast, easy and affordable. Companies like Own My IP let agencies transfer rights to the brand (or a freelancer transfer rights to an agency). Both parties have access to the transfer agreement, which is stored online to help prevent any copyright disputes in the future.
At the end of the day, it doesn’t matter how you protect your IP rights – just as long as you protect them. You could save yourself a tonne of time, money and embarrassment.
This article is based on the paper “Who Owns Your Intellectual Property?”, available free to download from www.ownmyip.com.
By Craig Olugbode
Managing Director
Own My IP
www.ownmyip.com