IP protection for creative agencies

Your creativity and ideas — your intellectual property — are your business. Protecting them should be your priority.

IP law is complex and can be difficult to understand. But that shouldn’t be a barrier to protecting your business. All you need is the right partner.

Download our Guide to IP in the Creative Industries to learn how to protect your pitches, brands and creative concepts.

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How our attorneys can help with IP protection

Our specialist IP attorneys advised marketing agencies, brand consultancies and more for over 20 years. In that time we’ve found solutions to almost every imaginable problem.

Whether it's the ideas that you pitch, identities you develop or content you create, it's important to understand your rights and have specialist IP protection in place to safeguard your business when you need it, ensuring that you:

  • protect your ideas from being copied
  • get paid for your creativity
  • look after your clients’ interests (so that neither of you get sued for using an idea you've created but haven't thoroughly checked)
  • add value to your business proposition and client relationships

To find out more, read our FAQs below. If you have a question that isn’t answered here, get in touch with our IP attorneys at creative@udl.co.uk.

FAQs — Creative agencies and IP

What has IP got to do with my creative business?

Every business owns, uses or creates some form of IP. IP is where the value lies in the works that you create for both yourself and your clients. In fact, IP is what you actually sell to your clients — whether it’s a new brand name, website or piece of content.

It’s essential that you have an understanding of the types of IP rights that exist, how those rights are created, who owns them, the mechanisms for transferring rights and whether your work is being infringed by others (or is actually doing the infringing).

Find out more about the main types of IP rights here.

Can I use IP to protect our ideas during the pitch process?

Absolutely. You own the IP in your pitches and client presentations. If a potential client copies an idea that you pitch to them, you can take legal action to prevent them from using that idea, or earn a revenue for your business. We’d recommend that, right at the start of this process, you present an NDA to the client in which it’s clear that you retain ownership of all IP rights and that the presentation of your ideas doesn’t give them any form or licence to use your work.

How can I use IP to add value to my client relationships?

Few creative businesses have a detailed knowledge of IP rights. By getting up-to-speed yourself, you’re able to stand out from competitors. You’ll be better able to advise your clients, and not waste their time and money (and your own) by working to create something that infringes another’s rights.

Is IP our responsibility or the client’s? Can’t I just let the client sort the ‘legal stuff’ out?

There’s no value to you or your client if you come up with an idea that can’t be used because it infringes the rights of others. In fact, this is likely to be costly — so you need to do (or get someone else to do) a trade mark search before you present creations like a new brand name to a client.

Clearing brands for use is becoming increasingly difficult as the number of registered trade marks has increased exponentially in recent times. Searches need to be done early and certainly before any emotional attachment has been created internally or with the client. When branding agencies come to us for help with a new naming project, our motto is “give us your shortlist of names and we’ll make it shorter…”

You should also make sure that your contracts contain appropriate IP protections. Many contracts in the creative sector make little or no provisions for IP rights and while IP can be complex, you’re able to impose at least some controls without worrying too much about the specifics. If you produce a design for a client and that client then uses your design for further creations, you should be earning licence fees for that use — if not, this should count as a breach of contract, rather than simply being seen as your client contravening the spirit of your arrangement.

So recognising your creation of IP and having some understanding of how to enforce your rights is a must.

Who owns the IP in the work we create — us or the client?

You (and your clients) need to be aware that if you’re commissioned to carry out work, you actually own the IP rights that are created, until they’re transferred. There are strict mechanisms for transferring ownership of IP rights. You’ll need a written contract — your (or your client’s) terms of business are rarely, if ever, enough.

This can really work in your favour — particularly if you find yourself in the position where your client has decided not to pay you for your services.

We work with freelancers — who owns the IP in the work they create?

In the absence of a contract with the freelancer that states otherwise, the IP in any work created for you will be owned by that individual. It’s therefore essential that you’ve taken an assignment of the IP rights from the freelancer before presenting the work to a client. You may also want to consider including an indemnity in such a contract in the event that the work turns out to be an infringement of the IP of a third party.

Is it okay to make changes to a copyright work and not be sued?

Hands up if you’ve heard that “making seven changes to a copyright work won’t infringe it” — and keep them up if you believe it…

This squarely falls into the category of myth. Using or copying someone else’s work without permission or a licence often results in legal action (or at least the threat of it). The question at the heart of copyright infringement is — have you taken a substantial part of the earlier work? If your answer is yes, you (or your client) could be on the wrong end of a copyright infringement claim.

The other frequent justification that we hear for copying is that “a third-party has done something similar, so we’ll get away with it”. While there may be some mileage in this, the factual situation is rarely known (does that third-party pay for a licence?), so it can’t be used as the sole justification for copying.

How does IP manifest in the real world?

Consider the reusable cup on your desk. The chances are that cup started life as a drawing created by a product designer which would be protected by copyright as an artistic work. The brand on the cup, created by an agency, is probably registered as a trade mark. The design on the cup will have been created by an illustrator and will have originally been a drawing (so copyright again). A draughtsman will have interpreted the drawings as CAD files for manufacture which would attract unregistered design rights. Some clever engineers will have developed the manufacturing process, materials or functionality of the cup (e.g. can be it be collapsed?) which may be protected by patents. And then we get the marketing agency, which created the materials that made you buy the cup. These were probably a mix of artistic and literary works protected by copyright and the brand. Finally, the overall appearance of the cup may be subject to registered design protection.

Hopefully, you get the point — IP is everywhere and in everything that you do. And we didn’t even get onto the cup’s packaging…

Here’s a useful guide for ensuring that your IP rights are marked correctly.

Does everyone in my business need to understand IP?

It’s not essential for everyone in your business to have a detailed knowledge of IP, but a basic understanding is useful, to ensure that your people are aware of the risks when creating. Any new creation has a starting point and your people should be aware of IP law when they make use of any third-party creations.

Your management team might wish to expand their knowledge of IP further and certainly should look to protect the core assets of the business (like your logo and brands) with registered IP rights (trade marks). It’s often not enough to rely on your reputation to protect your brands.

Case studies

Case Study

Crumbs Martech Ltd

Following the copyright crumb trail

When you commission an agency to work on a project, it's important to keep control of your IP — which is hard to achieve with a 'DIY' legal agreement.

Case Study

Anonymous creative agency

Client won't pay? Let us take it away...

Find out how an understanding of IP rights helped a creative agency get paid for its work after a client refused to pay.

Case Study

Mr Bingo

A full house for Mr Bingo

We found a creative, alternative way to resolve a copyright infringement dispute using the power of Instagram.

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