A Checklist for Modern Marketers
Digital marketing thrives on creative, engaging and compelling content that properly uses intellectual property (IP), whether it belongs to the company or a third party. If it’s the latter, the rush to create viral campaigns and eye-catching materials for pitches or advertisements often leads marketers into a legal minefield of IP violations, financial penalties and cease-and-desist letters that could potentially cause damage to brand reputation.
Understanding how to work with third-party IP rights isn’t just about avoiding lawsuits—it’s about building sustainable marketing practices that protect your brand while respecting the creative work of others. IP infringement damages can range from hundreds to thousands of dollars per violation, and social media platforms can be aggressive about content removal. An oversight of using someone else’s work without express permission can derail an entire campaign and expose your organization to substantial legal liability.
This checklist provides marketing professionals with a strategic framework to navigate IP complexities while delivering exceptional creative results.
Pre-Campaign Planning
Creative work must be built on a foundation of IP compliance. The planning phase is important because it helps avoid IP issues later. Once content is created or campaigns are launched, fixing IP problems becomes exponentially more expensive and time-consuming. Establishing proper procedures, budgets and legal frameworks up front prevents costly mistakes and ensures your team has the resources and knowledge to effectively navigate IP challenges.
__ Learn about each type of IP asset your company has/could have
Having a hard time identifying your IP? Use the U.S. Patent and Trademark Office’s IP Identifier.
1. Understand the four types of IP marketers use
Digital marketers regularly encounter four main types of intellectual property that require careful consideration:
Copyright
Copyright covers original creative works that are fixed in tangible form including images, videos, graphics, music and audio clips, written content and blog posts. Even simple elements like graphic designs, stock photos, or background music in videos can be protected by copyright and using them without proper licensing can constitute infringement.
Watch videos from the U.S. Copyright Office about copyright basics and services
Trademark
Trademark extends to brand names, logos, slogans, and other distinctive marks that tie goods or services to a particular source. The whole purpose of trademarks is for consumers not to be confused about the source of goods or services. Trademarks become particularly relevant when creating comparative advertisements or when user-generated content involves competitor brands.
Read the basics of trademarks on the U.S. Patent and Trademark Office website
Patent
Patent covers an inventor’s ownership of a novel, functional product or an ornamental design. Though less common in marketing contexts, patents can be featured when displaying technological innovations in digital advertising platforms or unique marketing methods.
Read the basics of patents on the U.S. Patent and Trademark Office website
Trade Secrets
Trade secrets encompass confidential business information that provides independent economic value and competitive advantages. In marketing, this might include proprietary customer data, strategic campaign information, or unique analytical methods.
2. Have clear IP policies and procedures
IP policies and procedures are written guidelines that explain what intellectual property is, who owns what content and how your team should handle IP issues. These policies should cover scenarios like using stock photos, creating original content, collaborating with influencers and repurposing existing materials.
__ Develop IP policies and procedures with respect to IP ownership and marketing
__ Train team members to identify potential IP issues
3. Develop a database of standardized contracts, work-for-hire arrangements, non-disclosure agreements and release forms
Having a database of developed template contracts for different situations when using someone’s work helps ensure consistency and that all necessary IP protections are included in each
transaction. These documents might include photographer agreements, model releases, influencer partnerships and vendor contracts. Having a database of ready-to-go agreements beats having to create these contracts from scratch every time.
Moreover, it is important to have work-for-hire or assignment contracts that clearly state your company owns any content created by freelancers, agencies or contractors that are working to benefit the company or organization. Without proper work-for-hire or assignment language, the creator might retain ownership rights, which could limit how you can use the content or could create complications if the relationship sours.
Furthermore, if there is confidential information like upcoming product launches, marketing strategies or proprietary data when working with external partners, agencies or freelancers, it is best to have non-disclosure agreements (NDAs) to help prevent sensitive information from being shared with competitors or the public before you’re ready.
__ Develop standard service agreements (e.g. photographer, videographer) Develop standard release forms (e.g. model)
__ Develop non-disclosure agreements
__ Develop vendor contracts
__ Confirm that all licenses and agreements are current and properly documented
4. Ensure a content approval procedure with IP clearance
Having a proper systematic review process where content goes through IP verification either through your legal team, external counsel, or trusted sources before publication can help prevent costly mistakes after content is already live. Checks should be conducted to ensure that all images are properly licensed, music is cleared for use, trademarks aren’t infringed, and any third-party content has appropriate permissions.
__ Implement multi-level review for all marketing materials
__ Consult with a lawyer and trusted sources before publishing
__ Double-check that usage falls within licensed parameters
__ Understand the possibility that one would need to create original content or know where to retrieve back-up content if issues arise
Together, these steps create a protective framework that helps marketing teams avoid legal issues, maintain clear ownership of their content and operate more efficiently by having established processes in place.
In part 2 of this blog post and checklist, we’ll cover campaign planning—including understanding licensing options and creating and protecting your own branded materials—as well as post-campaign considerations such as steps to take when an IP issue arises. Part 2 will be published Tuesday, June 23, at 9 a.m.
Jason Keener edited this article. He is a senior member of Irwin IP.
