Is your marketing agency putting your business at risk?

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The demands on a business owner’s time are intense, and successful entrepreneurs know how to determine which tasks to delegate. Marketing and branding is often outsourced in growing businesses due to the volume and variety of media needed to deliver the right message to customers across multiple channels.

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Much is written about how to find the right marketing company. Lists of the main things you should do to market your business abound. But what if your marketing business is doing more than just underperforming? What if it puts you in danger?

An agency can put your business on a dubious legal footing in two main ways: intellectual property infringement and unfair competition. The former is a more common problem than the latter, but companies should be aware of the potential liability that can arise from both.

Related: When is it right to fire your marketing agency?

Intellectual Property Infringement

Intellectual property issues can arise from the misuse or misappropriation of marketing assets. Ideas, words or images may be stolen or used without proper permission, attribution or license.

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 key SEO and content development needs. During the review, we discovered that a large majority of the images used on the site were not authorized for commercial purposes. The previous agency may have purchased licenses for the images, but these licenses explicitly exclude advertising or promotional use. We were shocked, but not surprised.

I’ve 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 financial benefit perceived by these practices is not worth the potential damage to the company.

The damages in these cases are not purely financial and, in fact, any monetary loss is probably the least costly consequence. The potential damage to the reputation and culture of a growing business can be more deleterious. If someone representing you takes shortcuts, what does that say about you to your potential employees and customers?

When possible, invest in professional photography licensed exclusively for your business use. The investment will pay off because you’ll have a collection of high-quality, brand-appropriate images that can be used on everything from LinkedIn profiles to print materials.

However, if that’s not possible, at least buy royalty-free stock. This will keep you out of trouble and help boost your company’s professional image.

Related: Intellectual Property Laws: Here’s What You Need to Know


Plagiarism is another form of intellectual property infringement, and in this case I am specifically referring to plagiarized writing. Since content marketing is part of most brand building strategies, your agency is likely in a race to stand out against an avalanche of competing articles and posts. So much data is added to the online universe every second that it’s easy for an overworked writer to be tempted to copy a little here and there and think no one will notice.

For the record, lawyers have asked me to take content from other people’s websites to use for themselves. So, I know this practice is more common than some suspect. Not only is this wrong and potentially damaging in the ways described above, but it will also hurt organic SEO efforts.

Google’s algorithms look 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 written ideas. Worse, pages that contain duplicate content can damage an entire site’s reputation in the eyes of Google.

Related: 5 Things to Look for When Hiring a Marketing Agency

Complaints for unfair competition

Unfair competition is a category encompassing false claims, defamation, and misappropriation of names or likenesses. Generally speaking, a business cannot run advertisements that unfairly criticize a competitor’s offerings or make false claims about the value of its own products. Ways a marketing company can expose you to such claims include:

  • Bidding on keywords that defame a competitor

  • Make false and misleading statements about yourself or a competitor

  • Committing ethical lapses, such as claiming expertise in certain areas of law that require certification

  • Making allegations intended to damage the reputation of a competitor

How to Avoid Evil

Fortunately, these issues can be avoided by establishing a regular monitoring system early in the relationship with your marketing agency. Such a system should include:

1. Carefully document complaints: Provide your marketing company with sources and data that back up any claims you would like them to make about your products or services.

A good marketing agency should also know how to approach working with certain potentially vulnerable audiences, such as the elderly and children, and how to market regulated products such as financial or legal services. Be sure to ask any agencies you are considering if they have experience in these areas if needed.

2. Create an audit schedule: Chances are you won’t be able to personally review every piece of marketing content your team creates. However, regularly scheduling time for a general asset audit will help you catch mistakes and bad practices.

3. Use services that confirm originality of content: Our agency uses Copyscape to check for plagiarism, and we have strict requirements that all writers run Copyscape checks before submitting their work to an editor.

4. By way of 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 documents they publish on your behalf? An agency must be able to answer these questions and document its processes.

Hiring a marketing company that isn’t delivering results is frustrating enough. Creating a habit of productive communication and review can help ensure that no more serious harm is done.