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Agency/client considerations: when it comes to IP, who owns what?

I’ve been very lucky in my career. The agencies and freelancers that I’ve had the opportunity to work with have shared my philosophy that any good creative undertaking is a creative partnership. That good work comes from trust, which comes from knowledge, which stems from relationships.

Nothing is more exciting than finding an agency or creative who really, truly “gets” your organization and what you’re trying to achieve. It’s also fulfilling to refer those providers to others (and there’s something very Manitoban about paying it forward.)

But in today’s workplace, the lines between marketing, communications, media and PR functions are more blurred than ever before. While still the dominant model, AORs and partnership models are becoming less common. More organizations are choosing to bring functions in-house; piecemeal work out specialty shops or source freelancers entirely. Which means more contracts, consultant and service agreements – all of which can be intimidating for the uninitiated (and the initiated as well, to be honest).

Here are a few considerations to discuss with your agency before you sign on the dotted line. At minimum, it opens the door to a conversation about expectations and deliverables, which will save everyone time and headache in the long run and in my experience, has played a key role in how satisfied clients and agencies feel about their relationship. You may or may not choose to introduce comfort wording into the terms and conditions of your contract, but an eyes wide open approach is always preferential to being blindsided by circumstance:

Disclaimer (I feel like my lawyer, if I had one, would make me include this):

I am not a lawyer. I've worked with lawyers. Writing copy and producing creative is a lot more fun without them (no offense intended to the talented and necessary work of the legal profession;) The below are my personal opinions, based on my personal experience and may or may not be accurate. I'd also love to get your insights and thoughts in the comments section - I'm always up for learning something new!

Creative copyright

In Canada, copyright exists automatically upon creation of the work and belongs to the author. Regardless of the fee-for-service arrangement; the determination of ownership of work can vary by industry and agency. In some cases, the provider will maintain ownership and license it back unless otherwise agreed (as is often the case with photography). Even when copyright is transferred, are you comfortable allowing the creator continued use (as part of a portfolio, submitted for industry awards, etc.)?

It’s always a good idea to include direct language about the transfer of intellectual property and its use. Clarify what files you as the client will receive (i.e. working files or high-res locked PDFs) and who will own the rights. Be forewarned though – if you do go this route, be aware that it can impact the price of services (as much as double).

Unexecuted or rejected concepts

In the absence of direct language in the contract, ownership of rejected concepts can be murky. On a number of occasions concepts proposed by an agency weren’t a fit for the particular campaign but would have been ideal for another project. Spelling out the terms of the contract prevents a situation where an agency is surprised to see rejected concepts in use elsewhere and/or the client feels cheated by an additional charge for work that one could argue has already been paid for. If nothing else, clarity on the use of unexecuted or rejected concepts makes sense from a relationship standpoint.

Freelance work

It can be a mistake to assume that either the agency owns work product commissioned by freelancers unless their work agreement so stipulated. As outsourcing becomes more and more common, it can benefit you to spell out what happens in the unlikely event that the agency may not in fact own the rights to the end product.

Stay tuned. More insights from the client side to come...

Jill KnaggsComment