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Everybody has a Jesse Gilmore agency transformation coach and founder of Niche and Control, author of the agency Owners Guide to Freedom and the creator of leverage for growth. I’m the host of the leverage for growth podcast, and I know that in order for you to scale your agency successfully, there are multiple shifts that need to happen within your mindset, skill set, and leadership style.
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I am on a mission to interview marketing and PR agency owners on their journey to six, seven, and eight figures and leverage the lessons from their journey to save you time, energy, and money to get your agency to the next level. If you find value in these episodes, watch the case study video to learn more about leverage for growth and how we successfully scale agencies at niche and control economy assets.
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That is niche in control. Decomp case study. And US case.
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You’re now listening to leverage for growth. Hey everybody. This is Jesse Gilmore, founder of Niche in Control and creator of the levers for growth. Welcome to the agency Leverage Edition. Today I am very excited. I have here with me Sharon Turek, the founder of Turek Law and the legal and creative platform, a go to legal ally for creative professionals, marketing agencies and design firms seeking to protect and monetize their intellectual work.
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Sharon is an intellectual property and marketing law attorney with a national practice based in Cleveland, Ohio. She specializes in helping agencies and creatives with the legal frameworks behind things like trademarks, copyrights, licensing, agency contracts, social media compliance and ad regulation. Risk. In addition, she is a host of the Innovative Agency podcast, where she dives into what is next for creative
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Today, Sharon will walk us through legal blindspots. Most creative businesses ignore how to build creative contracts that actually work, and how agencies can safeguard their work and scale with peace of mind. Sharon, welcome to the show. No pressure. Right? Thank you Jesse. I think it’s a little bit of serendipity that, your interview on the innovative agency released on this exact day that we’re having this discussion with each other.
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So thank you so much for having me. I’m looking forward to the conversation. Yeah. Me too. Me too. Let’s, let’s take us back just a little bit and and tell us how you first got into law. Was it always with the goal of working in intellectual property and marketing, or did it kind of gravitate there over time?
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Not at all. You know, I kind of feel like my pathway to being a lawyer in general was sort of accidental, kind of like a lot of agency owners end up being accidental business owners along the way. But no, I actually wanted to study political science, which sounds crazy in today’s environment. But, as an undergraduate, you know, my my parents were very practical about education.
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And my dad said to me, what are you going to do with that? Be a lawyer. I said, exactly right. I’m going to be a lawyer, dad. And I had no idea whether or not I wanted to go to law school at all at that point in my life, but that is the path I ended up taking. I and at one point, you know, as I was starting my law school career, having graduated with a useless bachelors in political science, I thought about either going into public policy or I thought about going into the private practice of law.
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I chose to go into the practice of law, but I really, had no clear pathway about the type of clients that I wanted to work with, except I knew that they would be businesses. Or the way that I wanted to serve them. And so my first job, really out of undergraduate school was with a big law firm, and I learned intellectual property there, and I fell in love with it.
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And even though we represented all kinds of industry, at a firm of that size, I really gravitated towards the IP work, trademark and copyright specifically. So fast forward a little bit. When I founded my own firm, the, the first of several, I just always gravitated towards protecting brands, protecting original creative work via copyright licensing.
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And that led me to a pathway of working with marketers, generally, because marketers deal with those issues every single day in the work that they do. And then that narrowed into working with agencies more specifically over time. When I founded my current firm about a dozen years ago, it was with a specific goal of serving agencies and intellectual property.
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And then we added contract development and negotiation and then marketing, regulation, compliance. So
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loving IP law became sort of my entry point or my springboard into working with creatives. And then my love of that plus business led me to wanting to serve agencies. So that’s kind of how, we got from there to here. And now I’m not going to tell you how many years we shot down my next question.
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But yeah. Yeah, this firm is this firm is about a dozen years old. And prior to that, I sort of ran the practice for marketing agencies who I was working with at the time, but as a sort of a silo within that, within that law firm that I was a partner in and decided I just wanted to serve agencies specifically because it really was a need and unmet need out there in the market for the types of questions they have, the types of issues they face.
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So yeah, that was the impetus behind founding Toric Law and which then sort of platformed as legal and creative for the agency world. And I’m sure over the years that intellectual property, either challenges or issues or things that come up, might have evolved over time and there’s probably some things that have stayed the same.
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What have you noticed as some of those trends that maybe are staying the same, and maybe the things that have changed over the years? I think, well, I think I think the major thing that has changed is that it is more and more challenging to, protect the equity you have in a brand legal, you know, from a legal perspective, because there’s just so much more real estate out there for your brand to be misused.
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Misappropriated, diluted, whatever the case may be. You know, when I just to give you a frame of reference when I originally started as a very, very, very young paralegal, actually, before I was even a lawyer, you know, working in the trademark space, we didn’t have to worry about, internet conflicts, you know, your your marks and your brand ownership, was typically regional, or it might be national, but that was the exception, not the rule.
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And today every brand’s a national brand. So I think the opportunities, and the necessities for being vigilant about protecting your IP have only increased with technology. First of all, with the internet now, most recently with AI and what I can mean for, brand integrity and representation of, of a brand, and legal protection of a brand.
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So I would say that that the importance of a brand has stayed the same. It’s even, I think, more critical in some ways. But the real estate, if you will, the digital real estate out there for things to go sideways has increased. And this affects agencies just like it affects their brand clients because you’re all swimming in the sand, you know, in the same ponds to try to make sure you create good, strong brands, creative concepts, whatever it might be to help your clients achieve their business goals.
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Totally. And I’m sure that over time you’ve probably seen some agencies that have kind of like typical mistakes when it comes to legal. Could be on the trademark side, could be on the copywriter side. What are some of those like most common legal mistakes that if you were talking to an agency owner that doesn’t know anything about legal and you’re like, these are some of the main things that you want to focus on, what would you tell them?
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Well, I think the the key vulnerabilities for any, independent marketing agency, we see that we see patterns over and over again.
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the theme overall is
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the unwillingness to maybe make the investment to be more proactive about your legal affairs in general. It’s typically viewed as a cost center versus an investment or a revenue generating center, which is like how we like our clients to think about legal, and more specifically, we see patterns with agencies of, them not having a good solid set of contract templates to use in their day to day business engagements, and whether that semester service agreement with the client or whether that is
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a good, solid, defendable, independent contractor agreement with your contract talent. Many times now, what we’re seeing is the need for agencies to have strategic partnership or alliance agreements with each other because a lot of agencies collaborate to serve common clients. So it’s it is, the, the lack of solid, well vetted contracts that they can use again and again and again standardize their processes.
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So that’s one area of vulnerability. I would say. Another area of vulnerability is the, the lack of formality. Sometimes we see in the agency space around,
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managing the freelance workforce. So freelance talent force,
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we see a lot of very informal arrangements between agencies and the freelance bench. They like to call up or the contractors they like to bring in, here and there and hopefully, you know, you find some wood to knock on and things,
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work out smoothly.
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But I’ve been on, you know, I’ve helped agencies through too many situations where the intellectual property in the finished work that, a freelance worker created wasn’t clearly established. Clear liability wasn’t established between the agency and, the contractor, or there’s not an alignment between what the agency has promised its client and what the contractor has delivered to the agency.
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And that can cause some legal dominoes to fall. And then from the intellectual property standpoint, it’s a whole new world now with, with artificial intelligence and what it means for who actually owns the deliverables that get created and,
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what it means for liability if,
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unintentional infringement occurs or there’s some claim brought against the brand,
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because of some campaign or some work product that I was used to create.
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So those are the most frequently on our on our clients minds type of questions we field on a daily basis. I would say additionally that we’re also seeing,
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a lot of M&A activity, even amongst the smallest of agencies. And so, you know, sort of failure to prepare for that eventuality, if that’s in your future as an agency owner and as a theme, I’m seeing more and more where, you know, and ironically, the same things you need to do to be well prepared to possibly sell your agency one day are the things that you need to do to have a good, strong legal foundation for your agency while you’re running it.
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So,
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I would say those are the key issues right now. That’s huge. I have two more questions to dive deep into. One of them because,
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I think, what are you talking about with, like, the service contract and, the mssa and,
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some of the really important clauses or parts of that agreement.
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I would love to know what are some of the most important things that you would say and like an agreement between, the company or the agency and the client? What are some of those main kind of clauses that you need to have in place, right from the get go? Sure. So we have a point of view at my firm.
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The there are certain, first of all, there’s certain pillar agreements that every agency needs in its legal toolkit a good solid client services agreement, whether you call it an MSA, whether you call it a PSA. And it doesn’t matter to me what you call it, a good, solid agreement. And I’ll answer your question about some of the things that need to be in that, an independent contractor agreement, a not a mutual non-disclosure agreement and then a protection agreement for your business with respect to your employees, whether that’s an employment contract or whether it’s what we call a business protection agreement.
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The thing that’s in place to,
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govern fair competition, IP ownership, etc., with your employees, the people who work for the agency. So in an agency client agreement, I think some of the critical things that need to be dealt with are
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the transfer and the timing of the transfer of the rights to the work that get created.
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And if you’re an agency, you want to make sure that never happens unless and until you’ve been paid by the client for all the services
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that you’ve performed for them, I would say, secondly, the ability to display, samples of the work that you’ve created, well, what we call portfolio rights, it’s critical for agencies because that’s what enables you to pitch for your next client by
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either telling the story or showing them a case study or actual samples of the work and and the names of the clients that you’ve performed for.
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So that is a critical contract provision between an agency and a client. Restrictive covenants are important. We have seen an increasing amount of, activity, around poaching of talent from agencies to brands and sometimes in reverse. But usually it’s the client who’s really interested in somebody who works for the agency once they have a relationship.
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So that needs to be addressed in the client agreement. And your payment policies are obviously important, but I find that most agencies are pretty diligent about, you know, expressing their payment policies pretty well. But clarifying those is, is important. And, and then I would just say, in addition to that, you need to really well crafted statement of work or work scope document.
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So that is very clear. What’s in scope, what’s out of scope. What a change order situation looks like. What kind of costs, you know, get passed through. And then finally kind of rounding home,
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the agency needs to be able to, if worse comes to worse, recover any collection costs that, are associated with, non-pay clients.
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And so,
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those are some of the top things that are the most critical for an agency to pay attention to. There are other side issues, like exclusivity requests from the client. You want to make sure those are either refused, or they’re crafted as narrowly as possible so that the agency doesn’t have its hands tied when it does business development.
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And and and then finally, artificial intelligence. What the rules are around it, getting the client’s acknowledgment if the agency plans to use it, who owns the work? If AI is used to create all or part of it? And who’s responsible, or liable if something goes sideways when AI generated work gets out into the world.
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Just a few things right there. I mean, it’s it is, you know, it’s. Yes. It’s not just a few things to your point. I mean, it is it’s a lot to think about. And it it is a good testimony about the importance of having thought through your toolkit, your legal contract toolkit, because if you’ve got a good, solid set of these templates that have very thoughtfully created with your specific agency’s policies, rules, and needs in mind, they can be evergreen and you don’t have to reinvent the wheel every single time.
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And so while it feels like a heavy lift when you’re doing it the first time, it really, it’s it’s a money generating tool for you over the long haul. And that’s where we like our clients to think about it. And I kind of want to ask one other question, because you talked about trademarks as well.
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And I think that one of the things that we get our clients to do is create a signature method and then be able to trademark it and brand it, and then it becomes like how they’re specializing. And so, I’m very interested in, maybe that same type of question, but more based around the trademarks. What’s the benefit of using a trademark?
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When would you get it registered? And how is that specific maybe to agencies, which might be a little different than, you know, other types of industries. Right. Well, so a trademark and a trademark serves as a source identifier. So it says to the world that the thing that you sell comes from you. And in the case of an agency, that would be the marketing and advertising services that you provide or the media planning services or, the creative services, whatever it is, it is an, a brand identifier that you are the one who owns the ability to provide those services using that brand.
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So it’s highly important from the perspective of avoiding potential confusion in the marketplace so that if I’m you know,
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Dandelion Agency,
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and there’s another Dandelion Agency, we, we want to do what we can to avoid that so that there’s no confusion in the market about who
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who created what work. That’s the first thing avoiding likelihood of confusion.
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The second thing is having a well protected trademark portfolio actually increases the value of your agency over time, along with the value of your other intellectual property. And so taking steps to protect it along the way means that if you ever get to a point where
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where you’re thinking about an exit or, you know, selling up the book of business, or the assets of the agency to another party,
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the IP portfolio is just as valuable in some cases as the book of business.
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So it’s important for a number of strategic reasons that, have real dollars and cents consequences to them. But I also want to mention, you know, you specifically use the example of an agency seeing value in
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developing is proprietary method or process. And many agencies do this and have this. If you want to enhance the value of that for the agency.
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It is a combination of trademark strategy, copyright protection for the actual assets that contain your methodology and then, transactions. And by that I mean the appropriate licensing and ownership language in your client agreements that make it clear that your methodologies, your proprietary stuff belongs to the agency and you’re never giving it to the client. You’re only allowing them to use it in the deliverables.
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So, all these things help create value and also protect the agency’s position and its intellectual property. And, you know, I have a personal soapbox about IP and agencies that we don’t have time for today, but I think it is one of the most under leveraged assets that any marketing agency has. And that, there are easy levers to pull to make your agency more valuable and also, to help it charge more for its services.
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If you have well developed and protected body of intellectual property and that’s trademarks, copyrights, license agreements, sometimes patents, although we see that less prevalently in the agency space. But every once in a while, there’s a patentable invention that occurs, sharing. You are a wealth of knowledge. I love this, I can tell you I’ve worked with agencies for a decent amount of time, and you can handle a lot of different, different, questions.
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So. Yeah. Yeah. So for anybody that, maybe listening to this and maybe they are developing their method or they’re trying to figure out either, is my contract, up to standard or what’s actually needed? And what’s the best way for people to get in touch with you and, and connect with you, you know? Thanks, Jesse.
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Well, first of all, thanks for having me. Secondly, highly active on LinkedIn so you can find me there. Sharon, talk tio r e k. The law firm is at Legal and creative.com, and, we frequently do agency owner Q&A events which are free to attend. We always do a little bit of learning, and then we open up, we go live on the mic to answer questions live.
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And so those are four times a year. And we’ve covered IP, we’ve covered M&A, we’ve covered AI. So lots of things that agencies need to know about. And so those are some of the easiest ways to access our knowledge base and some of the ways that we help beautiful. And for anybody that’s listening, I’ll include the links to Sharon, and legal and creative and work law, in the show notes.
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And, Sharon, just thank you so much for this conversation. I have I have a feeling we might have to do it a second time. It’s my pleasure. Thanks for having me, and I look forward to it. Agency owners, if you want to transform your agency to sustain and grow without your direct involvement, where you can stop working in the business and start working on the business where you can free up your time, delegate work more effectively, price and position your services to finally get paid for what you’re worth, and have the team run the day to day.
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Go to niche and control.com/case study now to learn more about leverage for growth, and also to book a free strategy session with us. We’ll look at your systems, determine exactly what you need to do in order for you to scale this year, and to create a strategic plan so that you can live the life of entrepreneurship you’ve always dreamed about.
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Go to niche and control.com/case study. Now.
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