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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 [...]

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 [...]

The 5 Best Ways Agencies Can Save Money on Legal Fees This Year

As a lawyer who advises ad and marketing professionals, I’m regularly reminded by clients that excessive legal fees are not a fun way to spend marketing dollars. This is understandable, and to me it’s also a somewhat welcome point of view. If that sounds like an unusual perspective coming from “legal,” hear me out: it is always less costly in the long run to have a proactive approach to the legal matters that regularly arise in the business of marketing. Making a smart investment up-front in some solid legal infrastructure saves your agency the important commodities of time and money later. So, what are some of these “smart investments” that allow agencies to save on pricey legal fees? Have a Model Agency-Client Contract in Place – Note the use of the term “model,” which is a deliberate choice over the more popular term “form.” This is because while I am decidedly “anti-form,” your agency likely has (I last I hope it has) some consistent business practices that apply to every client, such as intellectual property ownership, payment milestones, and liability limitation. Your clients are not commodities, and neither is the work you do for them, so I advise against approaching your dealings with them with a fill-in-the-blanks form. Instead, save time by having model contract terms and conditions developed one time, and modify or customize them client-by-client, or by project, as you have the need. It’s also my experience that the absence of model contract language makes it more likely that the agency will just skip the step altogether and start the work with no contract – one of the easiest ways an agency can cost itself extra money on excessive legal fees if the [...]

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