DESIGN AGENCY? How to Achieve IP Harmony at Work

Here’s an article I did for the Design Business Association about the top ten issues for creative agencies. A bit of summer fun….!

 Almost every day a client gets in touch to ask how to protect their work at each stage of the design process and what rights they should give to their clients. The answer is of course, don’t give anything away, but I often have to modify that when I am told what has already been conceded. It’s a difficult balance to achieve, keeping your customer happy by meeting their demands, whilst ensuring you don’t forfeit your creative endeavours.  

So, here’s a Top Ten version[1] of tips for agency IP issues, (queue wavy line fade out  a TV screen and fade in to an 80’s IP TOTP)

 In at Number 10 – “Take on Me

What IP is in your pitch and how do you protect it? Generally speaking the written words and the artwork in your pitch will be protected by copyright; the words as a literary work and the drawings as artwork. So declare this on your pitch by using © <date> <company name> on the work. Also consider using a Creative Barcode (www.creativebarcode) to declare your copyright in the work. Images from external sources should be credited, unless they are provided under an unrestricted Creative Commons license. State in your pitch that all IP belongs to and is retained by the agency and the hard copy belongs to you. If a client keeps your hard copy fine, but if they don’t hire you, get it back; it is shameful how many clients hand over one agencies work to another and say ‘I want something like this’!

Back in again at Number 9, “Feels Like Heaven” 

Success the client wants you! If you use sub-contractors make sure all their work is assigned to your agency under your terms with them. If you need software or plan to white label your own for any part of the work (or re-skin a website), make sure your licenses are up to date and you can use and assign the parts you need. 

Always in here somewhere, at number 8 it’s  “Alphabet Street

Time for contracts. Has the client provided its standard terms? Do you want to accept them? Make arrangements clear at the outset and manage your clients expectation! Consider what you are prepared to assign in terms of creative output; all artwork? all copy? You do not have to give any rights away but if you do, you won’t be able to use those materials again for another client in the future even if the current client never uses them. If the client wants all the IP and says it always requires this, ask “why?” Start from the position that your lawyer has advised against this; you can always retreat from that  (and blame your lawyer!) if the client insists. Finally don’t let the terms slide on the basis the relationship with the client is good. Get them written and signed before you start work, that way you stand a good chance of being paid whatever happens down the line.

 At number 7, climbing again this week,  “Walking on Sunshine

So the project has started, as you delivering to the milestones in the Contract? If so, are you invoicing according to these? 

Number 6 this week is “Careless Whisper” 

By now you will probably be using client IP; its trade marks or copy, make sure it has given you permission for this and an indemnity in case it turns out it doesn’t own rights in those works! Ensure all materials you provide are marked © and ‘confidential’ and only circulate them to the project team. Be careful too in case your client starts to wonder if that great designer who is working on the brief wouldn’t be better off working in house at the client and make sure your terms provide against non-solicitation of key staff.

Dropping to number 5, “A Good Heart” 

The customer might always be right, but the client always wants more. To keep them onside you might decide to go ahead and do it out of the goodness of your heart, and to maintain the relationship. Beware. If there is any project slippage get this back on track or warn the client and negotiate more time to deliver and agree this variation in writing if there is project creep, likewise to ensure you get paid for it.

Got that sinking feeling? In at number 4, “Blue Monday” 

So the client isn’t happy and things aren’t going to plan. What do you do? First look at the Design Brief and the Project Spec and talk it over with your client. Has it changed? Have timings slipped? Is it time to issue a change control notice? Try to find a workable solution and again, put it down in writing (email will do) so that everyone knows where they stand.

A faller at Number 3, it’s “Broken Wings

Don’t let matters drift and do run the problem by your lawyer. We are there to find solutions not just sort out problems.  We deal with lots of different clients and so have experience of industry expectations, how others do business and how matters can be resolved amicably.

This will never leave the top ten, at number 2 it’s “Gold

Are you ready to deliver the final project materials? Hopefully your terms set out how you will do this and that payment will be made immediately before or after delivery. If your terms provide that you will assign intellectual property on completion of the project, make sure they provide you will assign on receipt of payment.

Got there, at number 1 it’s  “Everybody Wants to Rule the World

IP is a valuable asset, develop and nurture it and don’t give it away freely.  Your customers should understand this and all but the biggest of them will agree to take a limited assignment of specific rights and a license of others.

So that’s this week’s Top Ten – I say “this week’s” because things change and what seemed like a really important consideration becomes less so as technology and practice move on and it pays to remember this and periodically review how you do things. 


The above songs in no way represent the musical taste of the writer and may or may not be found on my iPod!!





[1] Was the “Top Ten” the ultimate missed trade mark opportunity for the BBC? Email me what you think!


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