Guidelines for Negotiating Online Advertising Arrangements

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Businesses with advertising needs have long looked to advertising agencies or other outside service providers to assist with their marketing and promotion efforts. This outsourcing model has not changed with the emergence of online, social media, or mobile advertising. Agencies are not only assisting with development of digital creative materials, but also with advertisement placement, serving, and delivery. With respect to these online initiatives, advertisers should acknowledge and address the legal risks and issues associated with these new online or mobile delivery arrangements. The best defense available to advertisers against these potential pitfalls has been and remains their agreements with the agencies. Don’t rely on a general or outdated contract form. Below is a list of suggested concepts that should be addressed and incorporated, as applicable, into advertising agreements. Consideration should also be made of the constantly evolving legal framework governing the following.

- Retaining Content Ownership. Specify that the advertiser owns and retains all intellectual property and proprietary rights associated with its content or data, which is compiled, modified, derived, developed, created, or otherwise used by the agency on the advertiser’s behalf during the term of the agreement. Advertisers should require, at a minimum, that agencies receive only a tailored license grant to use such content or associated rights.

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