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Baby, You’re a Hot Legal Mess Just WAITIN’ to Happen

Agencies & Indies - avoid a contract legal messJust because you are footing the bill for that photo shoot doesn’t mean you own the resulting images, or that you can use them anywhere you want. Even if you are working with an agency.

What about when that agency transforms your new brochure into a matching website, infographic, Facebook and Google Plus cover image, Twitter background AND SlideShare deck – all with a nice, consistent look to them? Even if the client has a full release of rights and permission to use the images from the agency, the AGENCY might be blithely traipsing into copyright infringement territory with the photographer. TIMES SIX.

And when you came up with that brilliant flash mob idea for a client PR stunt? Both agency AND client can be unwittingly vulnerable to criminal, trespassing, property charges and more – even if a participant does something illegal without your knowledge or permission.

Want to do a flash mob stunt for a client? Listen to Ruth Carter’s FANTASTIC YouTube video first.

A Wing & A Prayer

Agencies, companies and independent contractors all have one thing in common: many of us don’t pay enough attention to the legal stuff.

It’s an afterthought done on a wing and a prayer.

According to the fantastic Ruth Carter of Carter Law Firm – an attorney well-versed in laws commonly applicable to Arizona agencies and creatives – even little words matter when it comes to legalities.

Like an extra extra hot sugar-free no-foam macchiato spilled in your lap when you are wearing your favorite white pants (yup, done that), neglecting contract law, social media and internet law, intellectual property law and trademark law can land anyone in the marketing industry in one major hot mess of a legal fiasco. Not only is it completely unexpected when it hits, legal trouble is MUCH more painful than a spilled cup o’ joe…


Legal Tips From Ruth (Nope, Not Advice!):

  • Find a lawyer that is a good fit for your business and your personality. If it isn’t someone you can be honest and upfront with, and pick up the phone to chat about issues in great detail, it might not be a fit. If you are a digital agency, don’t use an attorney that isn’t digitally savvy. This is not good! Working with logos and design? You need someone knowledgeable in trademark and copyright law. BE DILIGENT in your hiring process to find the right legal partner.
  • You may not be able to hire the attorney you want if they are not licensed in your state.
  • As an employee, you don’t own the rights to anything you create within the scope of your employment. Your employer does. Therefore, you can’t use it for anything else without permission.
  • Uploading PDFs of client work on an online portfolio? That’s copyright infringement if there aren’t certain contract provisions in place. If you are a contractor or agency, rights to do this must be included in your contract with that client. If it is work samples from a past employer, it must be in your employment contract to protect you, and in the agency client contract to protect the agency.
  • Unless stated otherwise in the contract, work done by an agency or independent contractor likely belongs to that agency or contractor – not the client. The client may only have a license to use the work for the specific application or scope of deliverable defined in the original estimate or contract.
  • And one tip from me – never, never, NEVER work on freelance stuff during office hours or using your employer-provided laptop. Even if they give you permission, this is a bad idea.
Ruth Carter, Carter Law Firm LLC
Photo Credit: Ruth Carter, Carter Law Firm LLC

If you blog, go buy Ruth’s ebook on Amazon called The Legal Side of Blogging: How Not To Get Sued, Fired, Arrested or Killed. It costs less than a cup of coffee and just might save you thousands of dollars. I bought it to read this weekend.

If you live in Arizona, Ruth offers free consultations at Gangplank Chandler on the first Monday of the month from 1pm until 4pm.

Quick Q&A On Contract Law With Ruth Carter

What are the top three most important issues an agency must address in their contracts to protect themselves, and why? Your contracts manage your relationships with your clients. The expectations should be clear regarding deliverables, deadlines, payment and receiving input from the client. Also, your contract should be clear about who owns the copyright in the deliverables and under what circumstances the other party can use it. If the client is going to own the copyright, it’s a good idea to write your contract in such a way that they don’t own it until their bill is paid in full. Lastly, every contract needs a dispute resolution provision that addresses how the parties are going to address problems (mediation, arbitration, or litigation), if they occur, what city/county/state they will resolve the dispute within, which state laws will apply and how you will handle attorneys’ fees.

What are some dangers of using a contract template found online? A template can be a good place to start doing research on what type of provisions you might want to have in your contract; however, you don’t know who wrote that contract or whether it addresses all your needs.

Is it okay to use one contract template across all clients, or should it be customized? It depends. If all your client interactions are the same, a contract template can be sufficient. Talk with your attorney about your work with clients to determine if a template is appropriate.

What are three things an agency should specifically look for when evaluating a new attorney? That’s hard to say. Selecting a lawyer is at least as challenging as selecting a doctor. You need someone who understands you and your business. You also need to select someone whose scope of practice is compatible with your needs.

What are a few red flags independent contractors should look out for that are different from agencies? The copyright rules are different for independent contractors than people who work at an agency. Even if a person is a freelancer, they need to remember that they have a business and need to make sure all their ducks are in a row legally to protect their personal assets.

That’s it for today! Did you subscribe to Ruth’s blog? It’s highly entertaining; you should do it. She also has links to some of her extremely useful guest blog posts on her website.

This article is for informational purposes only and does not constitute legal advice. If you need advice, hire an attorney licensed to practice law in your state. 


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