Wieden+Kennedy is an advertising agency that solves brand challenges through all creative media, and code is an increasingly important part of the brand experiences we build.
On October 19, 2012, Golan Levin gave a presentation at FITC’s Emerging Technology and Advertising event in Toronto titled New-Media Artists are the Unpaid R&D of Ad Agencies.
It was a provocation meant to spur dialogue between advertising agencies and new-media artists. Since we work with new media artists (and employ a few) and some work we’ve done was mentioned, we wanted to contribute to the discussion, because misunderstandings on each side of the line between art and advertising have the potential to sour relationships that should be awesome.
Yes, awesome. As an agency, we like to make great work with the best talent. And at a time when a new-media artist might struggle to make ends meet off their work alone, advertising is one industry that appreciates them and can give them a (paid) platform for their ideas. Is it always perfect? Hell no. But as an agency, we’ve worked out ways to collaborate through other creative media. Code should be no different. And the more we work together, the better it will get.
W+K’s Stephen Schieberl, a Cinder contributor and creative tech, joined with Renny Gleeson, W+K’s global head of interactive strategy, to coauthor an introductory guide to dealing with big brands in partnership with an ad agency like Wieden+Kennedy. It’s an open letter to the creative tech community explaining what’s important to brands and why, so we have a common language to help us get out of the woods and into some great work. We hope this offers directional guidance to help build productive, creative relationships.
Field Guide to Agencies and Brands
As a creative technologist, you may know that working for large brands comes with both opportunities and challenges. This short guide is aimed at being a practical resource for creative people engaging with large brands to help them make the most of those opportunities. It’s in no way definitive, but we’ve talked a lot within Wieden+Kennedy and with folks we’ve collaborated with to surface some key points that we hope fuel some productive conversations. Wieden+Kennedy understands these issues because we deal with them every day. We want the best for our clients above all else, but we are makers and creative technologists ourselves, and we believe surfacing these points is a step to supporting the broader creative community. Net: understanding the “why” behind some of the brand concerns may help us all create better work.
Forward-thinking brands like the ones we are fortunate to work with offer both creative opportunities and the ability to scale those ideas, but there are structural limitations and realities that come from being a large company with a well-known brand. Those realities may get in the way of doing things folks might get to do on other projects. Creative people working for brands and creative agencies often get frustrated when they can’t open source certain projects or promote certain work in their portfolios—or when particular gigs must be “work for hire” and such. But take heart. In our experience, those large brands and agencies DO value creativity and innovation. They want to promote the work in a way that helps the brand and the creative people working for the brand. So what are they worried about?
What Do Large Brands Worry About?
On a corporate level, large companies want three things above all else (i) high-quality creative work, (ii) lower-risk exposure and (iii) simple procurement processes. The first item is easy to understand because without it the brand is not going to be happy and people won’t be inspired by the work. Creative people inherently understand the value of (i), but they find it harder to empathize with (ii) and (iii). And that’s where things can get messy.
Don’t mistake items (ii) and (iii) as a disrespect for your artistic and technical contribution. Instead, think of them as practical considerations for any company or brand. It’s because of those considerations that companies have the resources for creative projects. So when that contract finally comes—and yes, it will be full of legal language, restrictions and protections, though we try to keep ours to a minimum—how do you approach making any changes in your negotiation with that large company?
The first acronyms to get your head around are MSAs and SOWs. The Master Services Agreement (MSA) dictates the contractual terms of an overall professional relationship, while the Statement of Work (SOW) tends to come into play around specific initiatives.
Why are there MSAs and SOWs? Simple: large brands need simple on-boarding processes. When a company has hundreds or thousands of employees, they have to work off of form agreements or else the simple process of hiring an app developer or photographer or doing web design would take a lot more time and money.
There may be some wiggle room on some items in the Master Services Agreement, but you are more likely to get concessions as an explicit change to the Statement of Work or as an amendment to the agreement later on down the road. As long as it’s made clear in the master (i.e. “in the event of a conflict between the MSA and an SOW, the SOW controls”), they’re equally as binding.
When asking for anything in the agreement or the SOW, try to get some language that can allow you to later ask permission to do something (e.g., “Vendor may, with prior written approval of Company, list Company as a client on its website and use publicly available materials in Vendor’s portfolio”). In some cases, you may be able to get certain rights without permission in the agreement or SOW, but “with prior written permission” is a solid secondary position that allows you to reopen the issue later.
Lastly, brands make exceptions for people they trust. Doing three or four good projects allows companies to treat you better in some ways in the long term. You are not likely going to renegotiate an MSA, but crediting, promotional use and a license to reuse material becomes easier. Don’t be afraid to ask for things in the third or fourth project that you weren’t able to get on the first project.
Ownership, Crediting and Portfolio Use
Ownership, crediting and portfolio use are the three most common requests from creative people working for large companies. Don’t make the mistake of thinking you have any of those rights by default. In almost every case, if you work as an employee or contractor for a company, you cannot publicly reference that work as yours or reuse that work because of confidentiality, work for hire or other provisions in your agreements. When in doubt, spell it out in the Master Services Agreement or Statement of Work. That is the only way to know you have these rights.
Here are some hints to help get what you need in these areas:
For crediting and portfolio use, consider the “with prior written permission” tactic above.
For ownership, do you need to “own” what you make here? It is enough for you to use or reuse it? If so, you can ask for a “license back” from the company.
For ownership, do you need to own all of it or just the underlying reusable functionality? Maybe you just want to confirm that you own any prior developed IP you bring the project?
For promotional use, how much do you really need and when do you need it? Consider waiting until the material has been made public. Also, what kind of promotional use is best for you? Do you want private portfolio use for in-person interviews or do you want to put it on your website or enter work into an award show? Each of these is different and a company may have varying sensitivities and permissions for each.
There are two main ways open-source comes into the creative-brand relationship. First is using open-source material and the second is making certain material, created commercially, open sourced. Using open source material in a commercial project is often a tough sell because companies have a difficult time understanding how something that is “free” is reliable. On the output side, open sourcing technical materials is a great way to develop the community as a whole and build your reputation in an area. However, the words “open source” strike fear in the hearts of most large brands. Most brands think that using open source or making material open source means that (i) they are opening themselves up to risk or (ii) their competitors can use the open source material to copy them. Both of these are true in a limited sense, but brands often need a little education to get more comfortable with the idea.
Some ideas for open-source material generally:
Explain that everyone uses open-source material. Point to WordPress, Linux, Magento and Firefox, and explain that a LAMP stand is not just something your living room. Show examples of other major brands making use of open-source material as well. Talk about how the price has to increase for building certain materials from scratch. Explain that some open-source material is the gold standard and that using anything else will result in compatibility problems.
Know your open-source licenses. If you want clients to be comfortable with open source, you better know the difference between GPL, MIT and the other major licenses. Be ready to discuss the differences with legal people and a company’s CTO.
Consider a time limit before certain material is put into the open-source environment. How about six, 12 or 18 months after material is used? This makes companies feel better about competitor access to open-source material.
Companies fear risk and enjoy positive credit for community development. Explain that we could open source certain material under the MIT or BSD licenses in a way that gives the company and the creative credit. Show them that these licenses disclaim all liability.
A Word About Leverage
In negotiation, leverage is really the beginning and end of the discussion. Rhetoric and negotiation skill help in areas where leverage is balanced, but it falls by the wayside when leverage is vastly unequal. Sometimes, despite our best efforts and intelligent tactics like the ones described above, we have to yield to the side that has more leverage. Past work, unique abilities and good prior relationships with a client actually build leverage. At the start, you may find that your relative size, hunger for the work and competing shops set a low leverage starting point, but that can change over time.
You should ALWAYS WORK WITH AN ATTORNEY on legal agreements and this short article is no substitute for that. Representing yourself in negotiations with a large company is the most common way of ensuring you are perceived as unsophisticated and don’t get the rights you deserve. It is like bringing a rock to a gunfight. If you are good enough to work for large companies, there is an attorney in your price range. Find one you like that understands your work, focuses on important things without slowing you down and you look forward to talking to. The right one is a great partner, mentor and Sherpa in the negotiation process.
Finally, the advice above is the best we have for helping obtain better terms from large brands. Know that it is often very difficult to get any of these terms. The methods above are the best way we know to go about it and they are NOT guaranteed to work. You should also think of these discussions as a process over many projects while you build trust and a relationship. If you go into a creative project thinking about it as a single transaction, it is going to send the wrong signals and make it more difficult to get work and concessions down the road. Also, when negotiating with intermediaries like advertising agencies, know that their Master Services Agreement with their client often ties their hands. They may not be able to give on certain topics because they don’t have those rights themselves.
Sample Language (which you should always review with your attorney)
‘The deliverables hereunder shall be marked Interactive Experience by Creative Name Here on an about tab associated with the deliverable.’
Alternate: ‘The deliverables hereunder shall be marked Interactive Experience by Creative Name Here in a manner, size, and position to be determined by the parties in good faith, consistent with industry standards and prior approved in writing by Client.’
‘With prior written permission in each case, Client shall be listed on Creative Name Here’s website as a client after the first public display of the deliverable hereunder and the deliverable may be entered into award shows and used for other promotional purposes. (Alternate addition: ‘Creative may use deliverables for private presentation promotional use under NDA with no additional permissions.’) Client may revoke any permission hereunder in writing at any time.’
Intellectual Property Reservations
‘Notwithstanding anything to the contrary herein, Creative Name Here’s prior existing tools, code, intellectual property, (alternate: ‘tools of general applicability developed during this engagement’,) and improvements thereon (“Creative Tools”) shall be wholly owned by Creative Name Here. To the extent any Creative Tools are incorporated into the deliverables, Creative Name Here hereby grants Client an irrevocable, perpetual, worldwide right to promote, sell, exploit, maintain, and otherwise create derivative works of the Creative Tools so long as such are part of the deliverables produced hereunder.’
‘The parties agree that Creative Name Here may use open-source code in the deliverables so long as (i) the open-source code does not require Client to open source the other code in the deliverables (ii) the license to any open-source code used in the project is delivered to Client with a separate summary of material considerations for compliance with the license. Any other open-source code may only be used with Client’s prior written permission in each case. The open-source code listed in the SOW is considered prior approved in writing by the Client.
The parties agree that elements of this deliverable in the SOW marked To Be Open-Sourced shall be made publicly available, with all code and associated materials 12 months after public launch of the deliverables under the MIT License with the following text:
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE
Prior to open sourcing the materials set forth herein, Client shall have one final approval over all such open-source materials and may include or exclude certain elements based on good faith discussion and negotiation with Creative Name Here.’
We hope you find this helpful.
The items above won’t be possible in every case—or even in the majority of cases with large companies. But they will be possible in some cases. And more is possible when you have a good relationship. Great collaborations that create transcendent work are built on relationships. Better relationships = better results.
Collaborations can take a lot of forms, and you should seek out the ones that make the most sense. At the end of the day, you need to consider whether a particular collaboration is right for you–and not all are.
We at Wieden+Kennedy hope this guide will help a few more creative people do more creative things and get properly credited. We also hope it encourage open-source use and development of materials for the artistic and technical community.
Onward and upward!
Thoughts? Comments? Critiques? Leave ’em in the comments.