The phrase “from scratch” has a different meaning depending upon who is saying it. When a client hears a marketing firm use these words, they are probably equating “from scratch” with “expensive.” The reality is that the creative process is fluid and generally existing material or tools are used to create something new or unique for the client. And these pre-existing materials should be used because they reduce development time and total costs. But taking material off the shelf and incorporating it into a client’s work product can be a hazardous practice because of the contract language that is probably lurking in the Master Services Agreement. Unless the marketing firm offered some changes, the Intellectual Property Ownership paragraph probably says that the client owns all the intellectual property right in and to the work product that the marketing firm is creating for it. This broad language would include the pre-existing material that the marketing firm used to show its efficiencies to the client and to lower the overall cost of the project. The marketing firm should negotiate with its client to make sure it retains ownership of all the intellectual property rights associated with its pre-existing material. Other restrictions can be discussed if clients have an issue with the marketing firm’s proposed change, but the marketing firm should preserve the intellectual property rights it has just like clients will ensure they obtain the intellectual property rights they are paying for.
