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Can You Keep A Secret? Nondisclosure Agreements in the Agency-Client Relationship

Creative agencies such as marketing firms, website developers, and advertising and design groups can often be reluctant to approach the issues of confidentiality and intellectual property rights ownership with prospective business clients. Those who set agency policies may feel that asking for a nondisclosure agreement (NDA) is too off-putting during business development discussions – as if bringing up such matters might sully the burgeoning trust that is being established in the working relationship and create an uncomfortable tension. Others feel that such agreements aren’t actually enforceable (yes, they are), or that a prospective client will always refuse to sign them (some will sign, some won’t). While some of these concerns are well founded, there are good reasons why creative agencies should still pursue a nondisclosure agreement. Let’s take a look at three of those reasons, below. Three Reasons Your Agency Should Utilize a Nondisclosure Agreement First, a nondisclosure agreement sends the professional message that the Agency respects the confidentiality of all parties involved. Integrity always makes a company shine brighter, don’t you think? How can an NDA protect everyone? Simply make the confidentiality provisions mutual so that both the client and the Agency are protected. In this way, the Agency’s client feels valued and is also subconsciously reminded that he or she is working in a private relationship. Secondly, an NDA offers a convenient opportunity to address rights ownership issues in writing prior to a pitch, proposal, or a new business discussion. Many agencies worry about protecting their intellectual property during the new business process as well. A mutual nondisclosure agreement can include helpful language about the Agency’s rights to the concepts and work it discloses, prior to actual engagement by the client. Thirdly, a [...]

By |July 10th, 2018|

The 5 Most Common Legal Mistakes in Agency New Business – and How to Fix Them

The agency new business process is, for most agencies, exciting and stressful at the same time. While your team is focused on the thrill of a potential “win,” and what that could mean for the agency’s fortunes, it’s probably equally under stress about meeting deadlines, putting forth your best efforts for the prospect, and keeping other clients happy too. Jody Sutter of Sutter Company and I recently addressed the challenges of new business and negotiations in a web clinic for agencies organized by Filament: “Don’t Leave Money on the Table – Negotiating Client Contracts From a Position of Strength.” While you’re navigating this process at warp speed, it’s easy to make an oversight or misstep that could cause bad legal consequences or financial loss for the agency. Don’t let this happen – be aware of the most common legal mistakes agencies make during their new business efforts, and how to fix (or avoid) them. 5 Legal Mistakes In Agency New Business and How to Fix Them Mistake #1: You don’t protect the Agency’s intellectual property during a pitch or discovery session, or in your proposal. Fix It: Sometimes it’s a valid business decision to allow the Client to own IP in pitch materials, spec creative or proposals – either because the Agency negotiated payment for it, or because it’s a required “ticket” to participate in the opportunity. But make it an intentional decision. Unless you’ve agreed with a prospective Client that it will own the Agency’s pre-engagement IP, use a Nondisclosure Agreement that protects the Agency’s ownership position. Absent that, at a minimum include IP ownership clauses in your proposal and pitch assets, and use copyright ownership notices on these materials and any spec creative [...]

By |June 12th, 2018|

Intellectual Property Advice for Agency Owners with Sharon Toerek

For most of us, we could use some intellectual property advice as legal issues are just not our strong suit. Our brains just aren’t wired to work that way. Whether it’s clients, freelancers or employees – we want to believe the best of people. But it’s important that we understand the legal risks we face every day and how we can mitigate those risks with a little planning, preventative measures and common sense. In this podcast, I have a great conversation with Sharon Toerek about all things legal from an agency’s perspective. We hit on a variety of topics including: Copyright laws and the misconceptions surrounding these laws How to protect yourself and your work when using freelancers How to implement a consistent legal process A checklist for agencies to internally audit themselves and find any current holes in their legal protection Sharon is an intellectual and property law attorney and her national firm, Toerek Law, works with agencies all over the country, devoting time to helping creative professionals protect, enforce and monetize their creative assets. Sharon consults with clients on legal issues surrounding copywriting, content protection, licensing of creative content, trademark and brand protection, and more. Sharon and I have worked together for years. I connect her to AMI agencies all the time because she’s not just a great attorney for big and small business law – she also understands our business and speaks our language. Best of all, there’s no legal jargon – I understand every word she’s saying! To listen – you can visit the Build A Better Agency site (https://agencymanagementinstitute.com/sharon-toerek/) and grab either the iTunes or Stitcher files or just listen to it from the web. If you’d rather just read [...]

By |November 18th, 2015|
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