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Making a resolution to get your services agreement dialed in? Or maybe just curious how your agreement stacks up? Consider a CreateLegal Report Card to see if your services agreement makes the grade.

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The portfolio clause is an important piece of any creative services contract. While straightforward, I’ve seen disputes arise out of missing or incomplete portfolio clauses.

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Retainers can be great for the studio or agency but they are prone to disputes. Longer terms lead to forgotten discussions, evolving needs, and unmet expectations.

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Service Agreement Field Manual

Service Agreement Field Manual

Whether you are a freelancer, growing studio, or busy agency, you have to deal with contracts. Sure, you have your own form of agreement that you use when you can. But what about inbound service agreements? That is, your client’s form of agreement. One where every provision tips in your client’s favor, written in impenetrable legalese. What do you do then?

Hopefully, you’ve got a lawyer on your side. One who is experienced in your industry and speaks your language. But what about when time is short? Or when budgets are tight? Or what if you don’t have the right lawyer (yet)? Until now, maybe you’ve just closed your eyes and signed, hoping things turn out OK. Or maybe you did your best to edit and understand the contract, not fully knowing what everything meant.

In those times what you need is a how-to guide. A reference you can consult for understanding, recommendations, and advice.

Enter, The Service Agreement Field Manual.

The Field Manual is paragraph by paragraph breakdown of the most common provisions in creative service agreements. Filled with plain English explanations, pitfalls to avoid, sample language, practical tips, and negotiating strategies, you’ll know where and how to push back to get a fair agreement. Over 22,000 words of our best recommendations and realistic advice on how to make the most of your next service agreement negotiation. Plus, you’ll never be stuck signing an agreement you don’t understand.

Think the Field Manual can help your business? Great. Jump on our mailing list and we’ll let you know as soon as it is ready. Plus, everyone on this mailing list will get a killer discount on the Field Manual when it is released.

We are very proud of the Field Manual and look forward to sharing it with you later this year.

Work for Hire and Assignment Clauses

Every creative services agreement should contain provisions addressing ownership of work. This post speaks includes tips when your client will own the work at the end of the project.

Other than payment disputes, the most common problems we see involve contracts missing intellectual property clauses. These can lead to payment problems, portfolio disputes, file delivery questions, infringement allegations, and unhappy clients. This post collects some tips to think about when your client will take ownership of the work. If you will retain ownership, you will need a license (and that is a post for another day).

  • The most important clause to include regarding intellectual property is a condition stating that your Client doesn’t take ownership of Agency’s work until they have paid for it. This simple clause is a key tool to stopping a client from using work they haven’t paid for.
  • For most types of work, we recommend that you avoid typical “work made for hire” language. Instead, use language of transfer. For example, “Upon payment in full, Agency hereby assigns the Work to Client.” This is often sometimes called a “full buyout.”
  • When transferring all rights, make clear that the deliverables assigned are only the final files (as opposed to concepts or working files).
  • Similarly, if you have any tools, code, or similar bits that you reuse on various client projects, make sure these Agency Tools are excluded from the scope of what is transferred to Client.
  • You do not need to retain any ownership to retain portfolio rights. Rather, you just need a good portfolio clause.
  • Assignment transfers all rights in the work to the Client – they can do whatever they want with the work. Because the client is getting all rights, be sure to price your work accordingly (more than if a client were to get a license in the same work).

Keep these tips in mind when negotiating the intellectual property clauses of your contract. Check out other posts in our series Anatomy of a Services Agreement.

Trademark Issues in Services Agreements

If you do logos, naming, and tag lines as part of your branding work, there are a few trademark issues you should address in your services agreement. This post outlines how to avoid some of the major pitfalls surrounding this type of creative work.

Logos, naming, and tag lines (we’ll call them “Marks” for this  post) are unique in that they can become trademarks – identifiers of the source and quality of goods or services. Trademarks are different than other types of design in that they can be innocently infringed. This means that if you create a Mark similar to someone else, even if you’ve never seen the other mark, using it may still constitute infringement.

Because of this, when you create Marks for clients, it is important that the client understand what they are and are not getting from you as a designer. Here are some things to keep in mind.

  • Ideally, your services agreement should state that you have no duty to investigate whether your work infringes the intellectual property rights of anyone else. You are a designer, not a clearance officer.
  • The next step is to state that you are not performing any trademark clearance services. This fits best in the SOW list of “excluded deliverables”. You aren’t a trademark lawyer so don’t let your Client believe they are getting trademark clearance searches from you.
  • Even if you do a Google search or a word search of the trademark office databases, we recommend that you do NOT include that in your list of services and deliverables. Stating this just creates misunderstood expectations with your Client. And in any case, these types of searches are not the same as a proper trademark clearance search.
  • When you present concepts for Marks to a client (before one is selected for development into the final), this is the time when the Client should take those Marks to its trademark lawyer to complete a trademark search.
  • When your Client signs off on the concept it wants developed into the final, consider having the sign-off documentation acknowledge that the selection is made with the understanding that trademark clearance is their responsibility.
  • If a client asks for a representation or warranty that your work does not infringe intellectual property rights, you should either exclude trademark from this representation or qualify it based on your knowledge without investigation. To do otherwise essentially makes.

Keep these tips in mind the next time you’ll be creating Marks as part of your project. Find more posts about issues in your services agreement in our ongoing series Anatomy of a Services Agreement.