Marketing Strategies That Help Agency Clients Win (and Keep Lawyers Happy)

The more sophisticated marketing strategies become, the more legal risks you’ll face in your marketing services agency, and the more potential risks your brand clients might face as well.

After providing legal counsel to marketing agencies for 15 years, I’ve seen lots of examples of marketing campaigns derailed in all areas or at all stages of execution. While "failing fast" here is better than failing late, the truth is that the optimal result - a win, without legal challenges - isn't as hard for agencies and their clients to achieve as you might think.

The most common cause of a marketing legal roadblock? The reluctance to pause for, or a rush past, proactive legal review. In some cases, this is because it’s unclear who should conduct the review. In others, the perception that a legal review will simply mean a “no-go” means the parties quietly work around it and hope for the best.

Smart agencies make legal input part of the marketing planning process upfront, and as early as possible, with both marketers and their legal counsel working creatively and collaboratively to get to “yes” in executing a winning campaign.

I recently had the opportunity to speak to marketers on this topic at INBOUND 2017, presented by HubSpot. In this session, attendees learned the rules marketers need to keep it all legal in areas like brand protection, copyright, social media compliance, freelancer work rights, and more.

Some common legal issues that most frequently cost marketers time and money, and some tips and tools to keep lawyers happy (or, better, away) from your marketing campaign are in reach, including:

The “R” in Brand

For agencies that do a lot of branding work, trademark issues can arise at any stage of deploying the new brand. Address brand clearance issues as early as possible with legal counsel (ideally handling trademark pre-clearance before pitching the brand to your client), and understand how to select brands that will survive the test of time as protectable trademarks. Don’t be that agency that gets too far down the road with a brand for your client, then ends up learning about a trademark issue.

The “Free” in Freelancer

Many agencies are rudely surprised to discover that rights to the work your freelancers create don’t just “follow the money.” Even after you’ve paid the freelancer, your copyright ownership is not automatic unless there’s something in writing that says so. This means having a written agreement with every agency freelancer, partner, and vendor is critical, and that agreement should include language that also addresses issues such as displaying creative assets or client identities. After all, you can’t give the rights to your client if you don’t own them from the freelancer, right?

The “IP” in Team

Any finished campaign or project in the modern marketing world is a collaboration between agency, client, freelancer, and any number of third parties. When brands and agencies come together on a collaborative project, working off a proposal, estimate, or statement of work, the issue of intellectual property ownership of completed work should be front and center. Specifically, the issue of when the rights transfer (HINT: it should be when the agency is paid). Brands and agencies need standard service agreements in place for other reasons too, like liability issues, compensation definition and work scope. Remember: contract signed first, project started next.

Under the Influence

Influencer marketing is no joke to the FTC, and the scrutiny is ratcheting up, not down, on compliance issues. Understand the FTC compliance, intellectual property use, and ad claims rules that can impact every social, content and influencer campaign, and have a solid written agreement that assigns legal responsibility for knowing and following the rules. Consider creating model policies too, so that the agency, client and influencer teams all know the playbook for staying compliant.

Fair Use, Fair Game?

The concept of copyright “fair use” is misunderstood, and frequently incorrectly applied, in marketing. Fair use IS a defense to copyright infringement in a few select situations. Fair use is NOT a free-for-all to grab digital assets (even easily copied assets) online and incorporate them into marketing campaigns. In copyright law, fair use virtually never applies to a commercial context. In our share-all world, written permission and proper attribution is key. Bottom line – if you don’t have written permission to use an asset from its owner, then Do. Not. Use. the asset.

Staking Your Claim 

You have a lot to say about your services or products, and sometimes about those of your competitors. In addition to being true, ad claims must also be substantiated. Engage with your legal advisor early and often in your strategy to ensure you have the necessary documentation and proof at hand to verify every product or service claim made in your marketing – whether analog, digital or social.

Avoiding the Pain in Legal Review

Your agency’s legal advisor should be an integral part of your team, and someone who you see as your advocate, not your adversary. If you want to limit the friction of legal compliance in your work:

• Involve your legal counsel early enough in the process to make a positive difference and avoid missteps.
• Educate your lawyer about how your business really works. Unless they live in the marketing space all the time, there are many aspects of your work that they don’t know enough about to give you practical advice. Trust me, they would rather know early than have to say “no” later.

Try these tips and keep your lawyer happy, or at least out of your way.

Contact me direct to continue the conversation.

This post originally appeared on LegalandCreative.com.

About Author Sharon Toerek, Principal, Toerek Law

Sharon Toerek is Principal of Toerek Law, where she focuses her national law practice on helping professionals in the advertising, marketing and creative services industries protect and monetize their intellectual capital, and manage the legal implications of their marketing and advertising work.

Sharon provides proactive, strategic counsel to communications, marketing, advertising and creative agencies on legal and business issues they face continually in their businesses.

Sharon is a nationally recognized author and speaker to advertising and communications industry organizations, advertising agencies, and in-house marketing teams, and has created and presented numerous training sessions and conference presentations to industry professionals on timely industry legal issues.

She is the Publisher of the marketing industry legal blog Legal + Creative, and is also the Author of the Legal + Creative Agency Protection System, a comprehensive legal education resource and toolkit for marketing, ad and creative services agencies. Learn more and connect at www.legalandcreative.com.