The 4A's Position Paper "Software and Software Tools Ownership and Use Contracting Considerations When Creating Digital, Online and Mobile Content" addresses the ownership of, and contracting considerations related to, software and software tools. The Position Paper provides background on how technology has changed the marketing services industry and notes that the ownership, intellectual property and indemnification provisions of many agreements between agencies and advertisers have not been adapted to accommodate the change in the services that agencies provide.

The paper recommends that, at a minimum, the ownership provisions in agency services agreements need to carve out software-related materials.

The 4A's recommends that agency agreements with clients preserve agency ownership and agency right to use agency developed software and tools.

This Position Paper is the sixteenth in the series of 4A's Position Papers addressing key industry issues. The Position Paper, which was developed in conjunction with Candice Kersh of Frankfurt Kurnit Klein & Selz, has been endorsed by the 4A's Digital Board, 4A's Media Policy Committee, 4A's Advertising Legal Affairs Committee and all 4A's Finance Committees. These 4A's communities recognize the importance of evolving industry practice that preserves an agency's ownership and right to use agency developed software and tools in agreements with clients.

We urge members to carefully review the new 4A's Position Paper, consult with your attorney and reevaluate the agreements that your agency enters into with your clients.

The 4A's Position Paper "Software and Software Tools Ownership and Use Contracting Considerations When Creating Digital, Online and Mobile Content" and other 4A's guidance are available in the 4A's Web site.

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