Everyday individuals within creative agencies develop IP for clients and projects. This includes the development of brands or trade marks, as well as copyright subsisting in artistic works such as visual elements, digital design and code. Frequently, creative agencies also deal with the IP of others, through the licensing of stock imagery and/or incorporation of work developed by Freelancers. Regularly this IP is passed onto clients by creative agencies without parameters attached, or even the awareness that they’re acting as third-party by delivering up the property of others for free dealing by the client.
So, what should be borne in mind?
- Ownership is King: Agencies are liable for the work produced and sold to clients. However, they’ll only own what’s produced by Employees of the company and not that of Contractors/Freelancers, unless a valid Assignment Agreement is in place.
- T&Cs Limit Liability: Agencies are liable for work produced and sold to clients. Delivering-up works produced by others can expose agencies to a level of liability for inadvertent infringement of IP rights, particularly if the client deals with works inappropriately. Well-drafted T&Cs not only achieve the purpose of defining parameters in this context, but may also be used to minimise risks and potential liability.
- Concept Vetting & Clearance: Agencies produce creative outcomes and assets for their client’s business – digital, web or brand related. Ultimately, the client wishes to maximise these assets for a commercial benefit. Ensuring that they can be owned and used free of any encumbrance is therefore crucial. This can be achieved through the vetting of concepts early in their development or by obtaining a Trade Mark Clearance Search in respect of the proposed brand and all essential elements.
We offer a number of tailored packages to assist agencies to manage the implications of being the “middle man” and protect their commercial position.
For more information on these services, please contact us.
