Hiring an Ad agency can be a tedious task if you are unaware of their whereabouts or working process. Our legal expert from Fashion Insiders gives us the best tips on how to hire an ad agency.
Tahir Basheer from Sheridan’s law firm offers his advice on considerations to be made before hiring an ad agency.
In order to increase brand awareness and drive sales, you may engage with an advertising agency to provide services for your fashion business. These services range from a full-blown campaign to specific online advertisements. As the fashion industry tends to be image orientated, high impact advertising is incredibly important.
Here are my top tips of things to be aware of when hiring an ad agency.
A fashion brand, as much as possible, should ensure that they own all the rights in the work produced and services rendered by the agency, which includes owning the intellectual property (IP) that makes up the advertising campaign. The ideal position for the brand should be that they can use these works in any way they see fit. This is called an assignment of rights.
Normally, when employees of a fashion brand create a piece of work, ownership of the IP in that piece will automatically rest with the employer i.e. the fashion brand. However, this only applies to employees and does not apply to freelancers and consultants. Therefore, an assignment of rights is necessary in any agreement with an advertising agency to ensure that the fashion brand maintains ownership of anything that is created. The advertising agency will usually limit this right to works that it has created for the fashion brand’s advertising campaign. Therefore, the agency will retain control of ownership over things that predate the agreement. This may include certain parts of the works that the agency can use again with a different client such as backend material used to design websites.
It is also normal for a fashion brand to only obtain a limited license over the use of material provided by third parties. For example, where music is used as part of an advertising campaign, the composer of the music will want to use his or her material in other projects outside of the fashion brand’s advertisements. Sometimes the fashion brand may want to negotiate some form of exclusivity agreement over these third-party materials if they are integral to the advertising.
Due to the way in which advertising is now used across a wide range of platforms physically as well as digitally, it is inevitable that a campaign will involve the use of third-party creatives such as artists, software developers, musicians and photographers. Where there is a lot of third-party content being used, it is important that the fashion brand cannot be held responsible should any of that content be obtained illegally or used without permission. The unauthorized use of content can result in legal proceedings, which can be very expensive. Therefore, to prevent this from happening, the fashion brand should ensure that any agreement with an advertising agency contains an indemnity on behalf of the agency indemnifying the fashion brand against all costs and losses in the event that a third party brings a claim. Similarly, the indemnity should cover any breaches of local laws and advertising regulations. The indemnity should be drafted in such a way so as to protect the fashion brand in every possible scenario.
Obligations of the Advertising Agency
Another consequence of the wide scope of modern advertising is the importance of fashion companies setting out in detail what services they require from an advertising agency. This should be outlined in a detailed ‘Advertising Brief’ which should contain timescales and milestones that the agency is obliged to adhere to when providing the works – known as deliverables. It is important to carefully consider the content of the ‘Fashion Brief’ as the cost of any changes to it down the line will most likely have to be paid for by the fashion brand. Fashion companies should also consider the different forms of advertising on offer and which campaign style would most suit their products and their target market.
Related reading: Fashion Marketing: How to Market your Brand on a Budget
The advertising services agreement should set out the process for the fashion brand to approve any works being produced. The agreement should state that no costly production or publication will take place before the form and content of these have been approved by the fashion brand. The fashion brand should always maintain the last approval so that no adverts are produced and published that could negatively affect the fashion brand’s image. An advertisement that does not fit in with the values of the brand or, even worse, shows the brand in a negative light can cause irreparable damage to the reputation of the fashion brand.
Finally, any agreement should specifically set out how the finished products are to be delivered to the fashion brand. If physical goods such as billboards and posters are involved, the agreement should set out whether these are to be picked up from a warehouse or delivered to the fashion brand or a third party. It is important that the delivery provisions are set out clearly as once delivery has taken place, responsibility for the works passes to the fashion brand. Where digital products are involved the agreement should set out on what electronic storage method they should be delivered on.
Overall, a successful advertising campaign can prove incredibly lucrative for a fashion brand by increasing awareness and positive perceptions of the brand. However, a poorly executed campaign can be incredibly damaging. Having a clear agreement from the outset will help reduce misunderstandings as to how the relationship with the advertising agency will work and if things do unfortunately go wrong, allow there to be a clear resolution.
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