Embed Size (px)
DESCRIPTION
Traklight guest, Sharon Toerek of Legal + Creative, hosts a webinar on Why Marketers Should Care About IP. Creatives at a company typically deal with more intellectual property than any other part of the company. Sharon focuses on the most common areas of IP that effect markers. If you're creating content, copy, logos, or even on social media, this a must view. Learn about your rights as a creator and how to protect yourself from potential infringements. Can you repin on Pinterest without damages? Find out.
Citation preview
Why Marketers Should Care About IP
January 14, 2014
presents
Sharon Toerek
Legal + Creative Licata & Toerek
Mary Juetten
CEO of Traklight
The Legal
Hot Buttons:
Today’s Goals
• Discuss common legal threads that run
through client experience
• Focus on the value of a
preventative, proactive approach
• Minimize the involvement of
lawyers in your lives!
• Create some conversations
Why Marketers Should Care About IP
WEBINAR PRESENTED FOR:TraklightJanuary 2014
PRESENTED BYSharon L. Toerek, PartnerLicata & ToerekLegalandCreative.com
Disclaimer Technology leads…
Business adapts …
Law sweeps up behind.
A Day in the Life of a Marketing
Pro…
• New Product Launches• New Technology Platforms
and Tools• New Content Generated• New Strategy to Implement• New Creative Treatments
IT’S ALL INTELLECTUAL PROPERTY!
The 5 Top
Marketer
IP
Hot Buttons
1. Protecting IP in a Business Pitch or the “Idea Phase”
2. Using a Virtual/Freelance Workforce
3. Rights to Completed Work
4. Selecting a Brand or Rebrand
5. Using IP Properly in Content Marketing and Social Media
IP Hot Button #1
Protecting IP in
a Business
Pitch or the
“Idea Phase”
The Business Issue: Constant tension in the pitch/
prospecting/ideation process
Your best creative foot forward vs.
Resources to generate work that may not lead to a formal relationship
The Legal Hot Buttons: – Who owns the work if an agency or vendor
doesn’t get hired by a brandholder?
– What happens if the work gets implemented by someone else?
IP Hot Button #1
Protecting IP
in a Business
Pitch or “Idea
Phase”:
Prevention
THE HARSH TRUTH:
NOBODY OWNS IDEAS!
Option 1: Get a confidentiality/rights ownership agreement in place pre-pitch
– Make the provisions mutual
Option 2: Forego the agreement and assume risk with open eyes
IP Hot Button #1
Protecting IP
in a Business
Pitch or “Idea
Phase”:
Prevention
Alternative Prevention.…
Use copyright law.
- Express as much of the conceptual work in written form as possible (storyboards, memos, detailed proposals)
- Put rights ownership language in all proposals
- Use copyright notices on all work product (pre-engagement)
IP Hot Button #1
Protecting IP
in a Business
Pitch or “Idea
Phase”:
Prevention
Further Consideration:Negotiate ownership in advance.
– Puts everyone on same page about IP
ownership
– An increasing trend in industry
IP Hot Button #1
Protecting IP
in a Business
Pitch or “Idea
Phase”: Reaction
Determine end goal before you pursue a remedy.
– Arrange a rights transfer/license arrangement (the
business/commercial solution)
– Pursue legal claims for:
• Contract breach
• IP misappropriation
IP Hot Button #2
Using a
Virtual/Freelance
Workforce
The Business Issue:Balancing the workload or need for expert resources by using virtual or freelance contractors
The Legal Hot Buttons:- Originality of Work
- Client Confidentiality
- Work Rights Ownership
- Restrictive Covenants
- Insurance Coverage
IP Hot Button #2
Using a
Virtual/Freelance
Workforce:
Prevention
PUT IT IN WRITING
PUT IT IN WRITING
PUT IT IN
WRITING…..
No handshake arrangements
IP in completed work in these
situations DOES NOT follow the
money – it must be in writing!
IP Hot Button #2
Using a
Virtual/Freelance
Workforce:
Prevention
Critical Contract Provisions:– Transfer of all IP and work rights
– Warranty of work originality– or a license to use or transfer the work
– Confidentiality
– Industry or Client Noncompetition and Non-solicitation
– Errors and Omissions Insurance Coverage
IP Hot Button #2
Using a
Virtual/Freelance
Workforce:
Reaction
– Get a post-engagement work rights assignment/transfer between parties
– Enforce your contract if it’s breached
– Make a claim on the errors and omissions insurance policy if appropriate coverage exists
IP Hot Button #3
The Rights to
Completed Work:
The Business Issue:
Agency: “What issue? We’re fine with our clients owning the work!”
Client/Marketer: “What issue? Of course we own the work! We paid for it!”
The Legal Hot Buttons:– IP Ownership Does NOT
follow the $
– A Payment problem or dispute
– Nothing in writing
IP Hot Button #3
The Rights to
Completed Work:
Prevention
– Acquire rights to all 3rd party-produced work in writing
• Create an internal process to manage rights to all work in a project
• Don’t forget about ALL outside vendors and partners used (photography, music, software programs, mobile apps)
– Include rights transfer language in client –agency/vendor contracts
• Trigger rights transfer to client on payment
• If you aren’t transferring ALL the rights, say so specifically
IP Hot Button #3
The Rights to
Completed Work:
Reaction
– Get a post-completion assignment of rights from freelancers or third-party vendors
– In payment disputes between agency and client, intellectual property ownership can be a lever to help resolve the matter
– Negotiate broader license if the client’s desired use of work expands post-engagement
IP Hot Button #4
Brand
Selection or
Implementation
The Business Issue: Traveling too far down the path of brand selection or implementation before learning a mark is not available or will not “clear.”
– Brand mark availability
– Appropriate clearance of mark
Domain name availability and/or clean Google® results
Are NOT Trademark Clearance!
IP Hot Button #4
Brand
Selection or
Implementation:
Prevention
Begin the trademark search/clearance process as early as possible
• Consider screening several alternatives simultaneously to save time
Start the trademark registration process immediately after selection/clearance
• Intent-to-use registration process allows you to apply while you’re implementing the mark
IP Hot Button #4
Brand
Selection or
Implementation:
Prevention
Steer away from the following:
– Marks that are very descriptive/generic
– Marks that are likely to cause confusion with others in your industry or market
IP Hot Button #4
Brand
Selection or
Implementation:
Reaction
If a brand trademark does not clear (after adoption):
– distinguish it (by industry/product/service)
– modify it with graphics or language
– acquire it
IP Hot Button #5
Using IP Properly in
Content Marketing
and Social Media
The Business Issue: Content Marketing and Social are attractive, but quick-moving and viral tactics. IP missteps are harder to fix.
The Legal Hot Buttons: The following scenarios create IP legal implications (for client and agency):
- Using freelance-created content
- Repurposing content of others
- Posting proprietary information in content or on social channels
- Improper TM use (yours or theirs)
IP Hot Button #5
Using IP Properly in
Content Marketing
and Social Media:
Prevention
– Get permission when posting the content of any party who isn’t your employee on your platforms
- Make proper attribution when posting content /IP of others (CR and TM Notices)
– Follow proper brand standards and usage requirements for trademarks
– Don’t use competitor brands in your marketing unless you are following the laws on comparative advertising
IP Hot Button #5
Using IP Properly in
Content Marketing
and Social Media:
Reaction
Correct violations as soon as you
learn about them:
- Take down objectionable content
- Cease competitive ads if they are
not compliant with law
- Get a license or written
permission, post fact, to use the
IP
- Do not disclose sensitive or
proprietary business information
via social channels or published
content
Recent Legal
Developments/
Trends
New Top Level Domains
– Trademark implications for brandholders:
- Tons more real estate to monitor and protect on Internet
– Trademark lawyers are hoping ICANN
cautious about releasing new TLDs too quickly
Recent Legal
Developments/
Trends
Pinterest® & Copyright Infringement
– Every “repin” is a potential copyright infringement
• Jury out on whether image owners care in many cases
– Stakes higher in a commercial context• Where you disrupt commercial market for
an image
– Don’t “repin” in a commercial context without permission
Recent Legal
Developments/
Trends
Ownership of “Social Contact” Data
Who owns:
– Twitter handles that include brand names
– Twitter followers, LinkedIn links or Facebook fans
IP Hot Buttons
for Marketers:
Questions?
Thank You!!!!!!Reach me at:
E-mail: [email protected]
Phone: 216.573.6000
Twitter: @SharonToerek
LinkedIn: http://www.linkedin.com/in/sharontoerek
Blog: www.LegalandCreative.com
Sign up for Traklight’s Blog
blog.traklight.com
The best place to get IP information delivered to you in a fresh and fun way!
The ID your IP tool, can identify your potential IP including patents, trademarks, copyrights, and trade secrets, as well as get strategic advice on how to protect your intellectual property.
1. Go to Traklight.com2. Click on the ID your IP button3. Use Promo Code WEBINAR13 at checkout
30% Off Discount
Thank You & See You Next Time!
