July 6, 2018

Make the Most of Your Touters: Legal & Practical Considerations for Marketing

by Jason H. Beehler, Kegler Brown Hill + Ritter

In any business, marketing presents a unique set of choices and challenges. Some advertising is governed by ethical rules; the bounds of taste and the public’s stomach for yet more advertising are also factors. Businesses also must choose whether to handle marketing in-house, or through a third-party marketing firm. That decision is driven by both practical considerations and a handful of legal questions.

Practical Considerations

On the practical side, the most obvious consideration is cost. Marketing is a professional service, and it’s not cheap. Communications professionals have unique and valuable skills, and they understandably want to get paid accordingly. Frugal organizations may see benefits in handling marketing in-house by using software programs that can help with both design and web content management.

But there’s an opportunity cost to this approach. Every hour an employee spends designing a website is an hour not spent working on the core business. Depending on the scope of the marketing effort, even a modest project may require later work to refresh information, manage advertising buys and create new content.

The scope of the specific marketing needs is also important. Small business owners who simply want to run one ad may find it cost-prohibitive to engage a third-party vendor. But many organizations reach a point where they want a continued marketing presence and evergreen content, which is difficult to manage alongside the pressure of running a business.

In-House or Third-Party?

Perhaps the most important factor is what the contract for services will look like, and what vendor services will be in-scope and out-of-scope. Business owners would do well to define the scope of vendor contracts as precisely as possible. Not only does such effort ensure a smooth professional partnership and clear communications, it avoids unnecessary disputes.

Price is important, not only for protecting your bottom line, but also in terms of defining the relationship. Are you seeking a one-time service, such as designing a particular ad to run in a particular media outlet? Or are you seeking the construction and ongoing maintenance of a website? Both parties should define precisely the term of the contract, the mechanism and rate of pay for the vendor, the circumstances in which the vendor’s rates may increase, and when payment will be due.

There are also intellectual property considerations. Businesses and marketing vendors should agree in writing who owns any work the vendor performs, and what rights, if any, the marketing professionals will have to use and display the work created as part of their portfolio.

Lastly, the parties should spell out how and under what circumstances each of them can terminate the contract, along with whatever notice is necessary to do so. Consideration of the right factors can take the mystery and trepidation out of the marketing process, and ensure a successful and professional marketing strategy.