IP For Marketers

Marketing Intellectual Property: Who Owns It?

The growth of online marketing and sales has produced a commensurate increase in the number of marketing agencies that provide marketing services to a growing number of businesses.

The outsourcing of marketing by a business raises unique issues not usually present with other functions that are typically outsourced, such as legal and accounting services. Specifically, the marketing function is one of the business functions that creates intellectual property for the business typically in the form of content and branding. In addition, marketing programs typically generate additional intellectual property in the form of business intelligence through the collection of a wide range of data, including data concerning potential customers, usage data, etc.

Valuable Assets

Marketing intellectual property can represent a valuable asset of the business that must be protected. For example, Apple has filed over 1500 US trademark applications to protect its brands, and the Apple brand represents a substantial asset of the business. Nearly the entire value of companies, such as Google and Facebook, is related to the collection and sale of user data for advertising, etc.

Copyrights, Trademarks, Trade Secrets

Marketing content and branding is generally created for public consumption by target consumers, so protection of this intellectual property is typically in the form of copyrights for content and trademarks for branding. Whereas, business intelligence generated by marketing programs is generally not for public consumption, but for the private use of the business. Business intelligence is one form a confidential information that may be owned by the business and the data may be a trade secret, if the data has independent economic value by virtue of the fact that data is not publicly known. Confidential information including trade secrets must be protected by contracts with the various parties that have access to the confidential information.

The Big Question: Who Owns It?

So, the question arises when you work with a marketing agency or consultant is who owns the intellectual property that is created by the marketing agency and generated through various marketing campaigns? Unfortunately, the answer is that it depends on your agreements with the agency. In addition, it may also depend on the agency’s agreements with its personnel, since agencies themselves may be outsourcing the creation and generation of intellectual property for your business to other companies and independent contractors.

In general, copyrights in a creative work come into existence at the time of the works’ creation and are owned by the person(s) that created the work. Notably, creative works related to branding and protectable as a trademark, may also be protected by copyright laws. In the US, trademark rights come into being when a mark is used to identify a business as the source of goods and services and provisionally when an intent-to-use US trademark application is filed. In other countries, trademark rights may come into existence upon the filing of a trademark application, irrespective of use, in addition to at the time of use.