Do you know what marketing assets you will own when your project is completed? You should.
I once had another agency owner brag they owned the copyright to all the work they did for clients, which gave them the upper hand in any dispute. It was common to negotiate and charge for specific licensing terms back in the day. Today, this is usually just taking advantage of a client’s lack of understanding of copyright and is completely unethical.
Absolutely understand verbiage in the contract covering ownership and copyright. In the absence of a specific transfer of rights in an agreement, everything produced and paid for on your behalf will be legally owned by the agency or person who produced them. This means that after you’ve paid for and used their work, they could tell you stop. It also means they could use that work for another client. An agency owning the copyright on work they did for you puts you in a horrible position if you end up in a dispute with them for any reason.
At S4, we keep things simple. You own what you pay for. We don’t license out or retain ownership of the work we do for our clients. Again, and I can’t say this enough, make sure you understand ownership and copyright when you’re signing a contract with an agency.
Third-party tools and design tools are different and more technical concepts than copyright when it comes to understanding the ownership of an agency’s output.
Any modern website uses a variety of third-party tools, platforms, and libraries. This could include the source code for the content management system, such as Wordpress or other code libraries (like jQuery) that web developers use in production. These tools are not owned by the developer and almost always have their own associated licenses. Many, but not all of these tools, are under open-source licenses. For example, here is the Wordpress CMS license. It’s important to understand that, while you may own the work and design produced by the agency, you may not have complete ownership of your ‘website’ which, as an entity, is a amalgamation of custom code and design and third-party libraries.
The term “design tools” typically references tools, libraries, and/or code the developer has built outside the scope of your engagement, but may use for something like expediting or simplifying development. While your contract may state that you own anything produced on your behalf, it may not include these libraries that were leveraged and incorporated into your website. For the most part, this shouldn’t be a big deal for many clients. However, depending on the tool, it may make it more difficult for another developer or agency to take over the project. Additionally, it may have implications for you if you plan on packaging, modifying, and/or selling the work produced. For example, you may engage an agency to create a template for a real estate agent that you intend to sell to your network of real estate agencies and customize as needed. In this case, you would need to fully understand whether this violates any design tools provision or license.
When in doubt, ask questions. Ask agencies to seek permission and/or provide licenses for any third-party or designer tools they intend on using.
Develop a good understanding of what assets and tools you'll own when your marketing project is complete. The marketing agency you choose should be happy to answer any questions regarding copyrights and licensing. If they aren't, you may want to consider other options.
Excerpted from Pitching a Fit: A Guide for Choosing the Right Marketing Agency by Chris Olberding.
Chris Olberding is a mediocre ukulele player who owns more Funko Pop figures than any grown man should. In spite of this, he has run a successful agency for the past 10 years by providing creative vision and strategic guidance to the S4 team. Chris has been recognized as one of Jacksonville Business Journal’s 40 Under 40, and S4 has been named to the Gator 100, a list of the 100 fastest-growing businesses owned or run by a UF alumni, for the last two years.