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Demands on a business owner’s time are intense, and successful entrepreneurs know how to determine which tasks to delegate. Marketing and branding are often outsourced in growing companies due to the sheer volume and variety of collateral needed to get the right message to customers across multiple channels.
Much is written about how to look for the right marketing company. Lists about the top things you should be doing to market your business abound. But what if your marketing company is doing more than just underperforming? What if it is putting you at risk?
There are two main ways by which an agency may be putting your business on questionable legal footing: intellectual property infringement and unfair competition. The former is a more frequent problem than the latter, but businesses should be aware of the potential liability that can arise from both.
Intellectual property infringement
Intellectual property issues can result from either the misuse or appropriation of marketing assets. Ideas, words or images can be stolen, or they can be used without proper permission, attribution or licensing.
For example, when we took over digital marketing services for a recent new client, we began a website audit to help us understand the client’s greatest areas of need for SEO and content development. During the review, we discovered that a substantial majority of the images being used on the site were not licensed for commercial use. The previous agency may have purchased licenses for the images, but those licenses explicitly excluded advertising or promotional use. We were shocked, but not surprised.
I have seen many image violations, from outright theft to using a watermarked version of an unpurchased asset to improper licensing. Taking an unlicensed image or using an incorrectly licensed image is copyright infringement. Any perceived financial benefit gained by these practices is not worth the potential damage to the business.
Damages in these cases are not purely financial, and in fact, any monetary loss is likely the least expensive consequence. The potential harm to a growing company’s reputation and culture can be more deleterious. If someone representing you is cutting corners, what does that say about you to your employees and potential customers?
When possible, invest in professional photography licensed exclusively for your business’s use. The investment will pay off as you will have a collection of high-quality images, custom suited for your brand, that can be used on everything from LinkedIn profiles to print collateral.
However, if that is not a possibility, at least purchase royalty-free, commercial use stock. It will keep you out of trouble and help reinforce your company’s professional image.
Plagiarism is another form of intellectual property infringement, and in this case, I am referring specifically to plagiarized writing. Since content marketing is a part of most brand-building strategies, your agency is likely in a race to perform against an onslaught of competitor articles and posts. So much data is added to the online universe every second that it is easy for an overwhelmed writer to be tempted to copy a little here and there and think no one will notice.
For the record, I have been asked by attorneys to take content from other people’s websites for use on their own. So, I know this practice is more common than some may suspect. Not only is it wrong and potentially damaging in the ways discussed above, but it will also harm organic SEO efforts.
Google’s algorithms are looking for unique, well-written and informative content to display on search results pages. Pages that present new information or a creative take on a familiar topic are more likely to rank well than those that rehash commonly penned ideas. Worse, pages that contain duplicate content can harm the reputation of an entire site in Google’s eyes.
Unfair competition claims
Unfair competition is a category encompassing false claims, defamation and misappropriation of names or likenesses. Broadly, a business cannot run ads that either unfairly criticize a competitor’s offerings or make false claims about the value of their own products. Ways a marketing company may be exposing you to such claims include:
Bidding on keywords that defame a competitor
Making false and misleading statements about yourself or a competitor
Committing ethical breaches, like claiming expertise in certain areas of law that require certification
Making claims intended to diminish a competitor’s reputation
How to avoid harm
Fortunately, these issues can be avoided by establishing a system of regular oversight at the outset of the relationship with your marketing agency. Such a system should include:
1. Thoroughly document claims: Provide your marketing company with sources and data that substantiate any assertions you would like them to make about your products or services.
A good marketing agency should also be aware of how to approach working with certain potentially vulnerable audiences, like seniors and children, and how to market regulated products like financial or legal services. Be sure to ask any agencies you are considering whether they have experience in these areas if necessary.
2. Create an audit schedule: Chances are, you will not be able to personally review every piece of marketing content your team creates. However, regularly scheduling time for a general audit of assets will help you catch errors and bad practices.
3. Use services that confirm content originality: Our agency uses Copyscape to check for plagiarism, and we have strict requirements that all writers run checks on Copyscape before submitting work to an editor.
4. As questions: When interviewing marketing companies, ask how they handle issues of copyright infringement or plagiarism. Do they have an internal review process? Can they show proof of license ownership? How do they confirm the originality of the materials they post on your behalf? An agency should be able to answer these questions and document its processes.