A key role of a creative agency is to produce content, either for themselves or on behalf of clients. This could range from developing imagery for social media campaigns to a full-scale rebrand.
Whatever the brief, it’s likely that the creative process will involve the use of existing third-party content – whether that’s an image or a sample of audio or video. Luckily, it’s never been easier to access material online and use the content that others have produced.
However, if you decide to go down this route, you need to ensure that strong licensing procedures are in place. And even the most robust ones can fail, with potentially expensive consequences. Why? Let’s take a closer look…
The cost of getting caught out
The internet contains many organisations looking to catch people out. So what happens if an agency accidentally uses an unlicensed image?
While there are some good companies out there protecting the right of original content creators to be rewarded for their work, there are also licensing trolls who scrape the internet, searching for content that has been used without appropriate permission or a licence.
Unlike those ethical companies that work to promote their clients’ content and recoup any costs, these lesser entities often purchase rights en masse, and are the IP equivalent of high-frequency traders. They show little thought for the original content creators. Instead – aware that you produced the material for your client – they seek to take advantage of the potential dispute between customer and agency.
The aim of such organisations is to exploit accidental errors made by small businesses, and ultimately to profit from other people’s work. Their strategy is to threaten litigation, then offer settlements just below what it would cost to defend the action. To them, it’s nothing more than a numbers game.
How to protect yourself
All creative agencies have a responsibility to protect the content producers. While there’s no excuse for breaching a licence, it’s easy to make an innocent mistake. It could be that the use of an image had no financial effect on the licence holder, for example, beyond the loss of the licence fee. That means there’s no real justification for extorting high amounts from small businesses.
To be on the safe side, agencies should ensure they have strong Professional Indemnity insurance in place. With the inclusion of Intellectual Property Infringement cover, your insurer can help to protect you if you make an honest error that leads to disproportionate threats.
We understand that mistakes can happen, and that’s what your insurance is for. If you receive legal threats regarding a licensing slip-up, be sure to contact your insurers immediately. They can help to defend you, or negotiate with the other party on your behalf, and take away some of the stress by providing legal advice to deal with the situation.
Uncategorized - November 7, 2022
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