Marketing Agency Agreement Lawyers Adelaide: Agency, PR and Campaign Contracts, IP and Compliance
Marketing agency and PR agreements in South Australia
An agency can build a campaign quickly, and the agreement with it decides who owns what it makes and who answers for what the campaign says. Talon Legal drafts and reviews agreements for Adelaide businesses hiring marketing, advertising, creative, digital and PR agencies, and sets terms of business for agencies themselves. Book a same-day free 30-minute consultation or call (08) 7094 2021.
Marketing agency agreement key facts
| Issue | Position in South Australia |
|---|---|
| Who owns the creative | The author, unless an employee made it in their employment (Copyright Act sections 35(2) and 35(6)). An assignment must be in writing and signed (section 196(3)). |
| Commissioned video | The commissioning party owns the copyright in the film, unless agreed otherwise (section 98(3)). |
| Campaign claims | Misleading or deceptive conduct and false or misleading representations are prohibited (ACL sections 18 and 29). |
| Maximum penalty | Section 29: for a company, the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover. $2,500,000 for others (section 224). |
| Publisher defence | For a business whose business is publishing or arranging publication of ads, that received the ad in the ordinary course and had no reason to suspect a contravention. It does not help the advertiser whose ad it is (section 251). |
| Email campaigns | Consent, sender details and an unsubscribe facility (Spam Act sections 16 to 18). Being knowingly concerned is also a contravention (section 16(9)). |
| Outsourced telemarketing | The contract needs an express Do Not Call Register Act compliance clause (section 12). |
| Unfair terms | Void in a standard form small business contract (ACL sections 23 and 24). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Need a marketing agency agreement lawyer in Adelaide?
Our marketing agency agreement lawyers in Adelaide act for businesses engaging marketing, advertising, creative, digital and public relations agencies, and for agencies setting their own terms of business. The agreement should decide who owns the campaign material and who carries the risk in what a campaign says. The Australian Consumer Law (ACL), in Schedule 2 of the Competition and Consumer Act 2010 (Cth), governs campaign claims. Ownership turns on the Copyright Act 1968 (Cth), and email campaigns must comply with the Spam Act 2003 (Cth). This page states the law current to 6 November 2026.
This guide is part of our marketing and advertising practice. Related guides cover sponsorship agreements, influencer and endorsement agreements, trade promotions and competitions, buying advertising space and testimonial and image consents.
For campaign material made with AI tools, see our guide to AI-generated content and copyright.
Free Consultation. Send us the agency’s proposal and terms before you sign. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- What should an agency agreement cover?
- How should fees, media spend and approvals work?
- Who owns the creative an agency produces?
- What about stock images, music and AI material?
- Who is liable for what a campaign claims?
- Does the publisher defence protect an agency?
- What rules apply to email and telemarketing?
- How should customer data be handled?
- Which agency terms are void or unfair?
- How should confidentiality and the exit work?
- How similar matters tend to play out
- How we act on agency and PR agreements
- Case law
- Frequently asked questions
What should an agency agreement cover?
The work, the money, the rights and the risk, usually split between a master agreement and a brief for each campaign. Together they should cover these points.
- Services, deliverables, timetable and change requests.
- Fees, media spend and approvals.
- Ownership of the creative, licences and moral rights consents.
- Who checks claims, Spam Act compliance and customer data.
- Confidentiality and conflicts with competing clients.
- Liability, termination and handover.
A PR agreement adds rules on who may speak for the business. Where the agency proposes its standard terms, a marketing agency agreement lawyer will read the renewal, price change and liability terms, which resemble the statutory examples of terms that may be unfair (ACL section 25).
How should fees, media spend and approvals work?
In writing, before the work starts. A retainer should state what it includes and what happens to unused hours. Work outside the scope should need a written change request, with a price, before it starts.
Media spend needs its own rules. The agreement should say whether the agency books media in its own name or for the client. It should also deal with mark-ups on third party costs and any rebate a media owner pays the agency, and give the client an audit right.
Approvals should be written and staged: the plan and budget, then copy and artwork, then final proofs and the media schedule. Each approval should say what it lets the agency do next. For a PR agency, the agreement should name who may approve releases and speak to media.
Who owns the creative an agency produces?
The agency or its freelancers, unless the agreement assigns it. The author of a literary, dramatic, musical or artistic work owns the copyright (Copyright Act section 35(2)). Artistic works include drawings and photographs, and the author of a photograph is the person who took it (section 10(1)). Work made under a contract of service belongs to the employer (section 35(6)), which is the agency, not its client.
Paying does not change this. A commissioning client owns a commissioned photograph only where it was taken for a private or domestic purpose (section 35(5)), such as a wedding or family portrait (section 35(7)). A freelance photographer or designer commissioned for advertising owns the work unless the contract assigns it.
An assignment has no effect unless it is in writing and signed by or on behalf of the assignor (section 196(3)). A signed agreement can assign copyright in work not yet made, so that it vests in the client as it is created (section 197(1)). The agreement should assign the campaign material to the client, and require the agency to obtain matching assignments from its freelancers.
Film is different. A person who agrees, for valuable consideration, to have a film made by another person owns its copyright, unless they agree otherwise (section 98(3)). If the agency signs and pays the production company, the agency is that person, so the agreement should pass the film copyright to the client.
Moral rights, including attribution and integrity, stay with the individual creators and cannot be assigned (sections 193, 195AI and 195AN(3)). A written consent genuinely given, covering specified acts and works, means those acts do not infringe (section 195AWA). The agency should collect consents to editing and to publishing without a credit.
What about stock images, music and AI material?
Each needs a licence covering the planned use. Copyright is infringed by a person who, without the owner’s licence, does or authorises the doing in Australia of an act comprised in the copyright (section 36(1)). For artistic works, those acts include reproducing and publishing them (section 31(1)(b)). A client that publishes an unlicensed image is doing those acts, whoever chose it, and the owner can seek an injunction and either damages or an account of profits (section 115(2)).
The agency should clear third party material for the client’s planned use, and the client should warrant its own logos and product images. Releases from people who appear in campaigns are covered in the film releases and clearances and testimonial and image consents guides, and music in the music licensing and sync agreements guide.
AI-generated material may not be protected at all. In Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149, Perram J said the author of a computer-generated work will ordinarily be the person controlling the software, if that person directs or fashions its material form. Where a computer performs the functions human authors ordinarily perform, copyright does not subsist ([118]). That case concerned directories, not AI tools, but the agreement should still require the agency to disclose AI-generated material and check each tool’s terms.
Who is liable for what a campaign claims?
The advertiser, first. A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive (ACL section 18(1)). In connection with the supply or promotion of goods or services, a person must not make false or misleading representations about matters such as quality, price, sponsorship or approval (section 29(1)). A representation about a future matter, such as a promised result, is taken to be misleading if made without reasonable grounds (section 4(1)).
In ACCC v Employsure Pty Ltd [2021] FCAFC 142, a private workplace relations consultancy ran Google search ads on keywords such as “fair work ombudsman”, so that searchers’ terms appeared in the headlines ([1] to [2]). The Full Court held that by publishing the ads Employsure conveyed a government affiliation, contravening sections 18 and 29(1)(b) and (h) ([6]). Its dynamic keyword insertion and keyword choices produced that impression ([157]). A business that leaves keywords to its agency should approve the keyword list and headline templates.
For section 29, the maximum penalty for a body corporate is the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover during the breach turnover period. For anyone else it is $2,500,000 (section 224(3) and (3A)). Damages are also available (section 236(1)).
The agreement should say who stands behind each claim: usually the client for facts about its products, with the agency adding nothing unapproved. In a proceeding, a testimonial representation is taken to be misleading unless evidence to the contrary is adduced (section 29(2)).
Does the publisher defence protect an agency?
It can protect an agency that places ads, but never the advertiser. Section 251 applies to proceedings under Part 5-2 of the ACL, which include penalties and damages, for a contravention committed by publishing an ad. The defendant must prove that its business is publishing or arranging publication of ads, and that it received the ad in the ordinary course of that business. It must also prove it did not know, and had no reason to suspect, that publishing it would be a contravention. Section 209 is the equivalent for prosecutions.
A media-buying agency can rely on it for a client’s ad it had no reason to doubt, though in practice an agency that devised the claim will find the third element harder to prove. The advertiser is not in the business of publishing others’ ads. That is why agencies ask clients to warrant their claims and give an indemnity.
What rules apply to email and telemarketing?
The Spam Act for email, and the Do Not Call Register Act 2006 (Cth) for telemarketing calls.
A commercial electronic message is one that, judged by its content, presentation and links, has as a purpose offering or promoting goods or services or their supplier (Spam Act section 6(1)). A person must not send, or cause to be sent, one with an Australian link unless the account-holder consented (section 16(1) and (2)), designated messages aside. Consent can be express, or reasonably inferred from conduct and relationships (Schedule 2 clause 2). It cannot be inferred merely because an address was published (clause 4(1)). Whoever relies on consent bears the evidential burden (section 16(5)).
Each message must identify who authorised it, with accurate contact details (section 17(1)). It must carry an unsubscribe facility that works for at least 30 days after sending (section 18(1)). An unsubscribe takes effect at the end of 5 business days (Schedule 2 clause 6(1)).
Both agency and client can be exposed. Aiding, abetting, counselling or procuring a contravention, or being knowingly concerned in one, is itself a contravention (section 16(9)), and these are civil penalty provisions (section 16(11)). The agreement should say who keeps the consent records and the unsubscribe list.
Telemarketing calls to a number on the Do Not Call Register need the account-holder’s consent, unless the call is a designated call (section 11(1) and (2)). A business that outsources calling must not enter the contract unless it contains an express provision that the provider will comply with the Act and, where its employees or agents make calls, take all reasonable steps to make sure they comply (section 12). See the BPO and call centre agreements guide.
How should customer data be handled?
Whether either business has obligations under the Privacy Act 1988 (Cth) needs checking, and part of that check is the small business operator test in section 6D. A small business is one with annual turnover for the previous financial year of $3,000,000 or less (section 6D(1)). A business that discloses personal information for a benefit, service or advantage, or provides one to collect personal information from anyone else, is not a small business operator (section 6D(4)(c) and (d)). Buying or selling marketing lists can bring a business within those words.
A covered organisation must not use or disclose personal information it holds for direct marketing unless an exception applies (APP 7.1), but APP 7 gives way to the extent the Spam Act or the Do Not Call Register Act applies (APP 7.8). It must take reasonable steps to protect personal information it holds (APP 11.1). Before disclosing it to an overseas recipient, such as an offshore contractor, it must take reasonable steps so that the recipient does not breach the APPs (APP 8.1). A suspected eligible data breach calls for all reasonable steps to complete an assessment within 30 days (section 26WH), so the agency should have to report incidents at once. See the data protection and privacy guide.
Which agency terms are void or unfair?
Exclusions of the consumer guarantees, and unfair terms in standard form small business contracts.
A business acquires services as a consumer if the amount paid or payable does not exceed $100,000 (ACL section 3(3)(a); regulation 77A of the Competition and Consumer Regulations 2010). The services must then be rendered with due care and skill (section 60), and a term excluding that guarantee is void (section 64(1)). For services not ordinarily acquired for personal, domestic or household use, liability can be limited to supplying them again or paying the cost of having them supplied again (section 64A(2)), unless the client shows that relying on the limit would not be fair or reasonable (section 64A(3)).
An unfair term of a small business contract is void if the contract is a standard form contract (section 23(1)), as it is presumed to be unless proved otherwise (section 27(1)). It is a small business contract if at least one party employs fewer than 100 persons or had turnover under $10,000,000 for its last income year (section 23(4)).
A term is unfair if it would cause a significant imbalance, is not reasonably necessary to protect the legitimate interests of the party it advantages, and would cause detriment (section 24(1)). That party must prove the term is reasonably necessary (section 24(4)). The upfront price itself is outside the test (section 26(1)(b)). A term letting only one party renew or not renew the contract is a statutory example of a term that may be unfair (section 25(e)).
In ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224, the Court accepted, on agreed facts, that an automatic renewal term binding customers unless they cancelled within 30 days before the end, without notice of expiry, caused a significant imbalance ([56](a)). Since 9 November 2023, proposing, applying or relying on an unfair term in a standard form small business contract has been a contravention (section 23(2A) to (2C)), with the section 224 maximums. A large client’s terms imposed on a small agency are caught too.
How should confidentiality and the exit work?
Agencies see unreleased products, pricing and sales data, so the agreement should define what is confidential and limit its use to the engagement. Equity also protects it. In Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21, the Full Court listed four elements of a breach of confidence. The information must be identified with specificity and have the necessary quality of confidence. It must be received in circumstances importing an obligation of confidence, and there must be actual or threatened misuse without consent ([39]). An exhaustive contractual definition did not, by itself, exclude those obligations ([29]).
The exit should be a handover the client controls. On termination the agency should deliver all campaign material, work in progress and source files. Advertising, analytics and social media accounts should be in the client’s name from the start, with the agency as a user. A term that penalises only the client for terminating is a statutory example of a term that may be unfair (ACL section 25(c)). An APP entity must take reasonable steps to destroy or de-identify personal information it no longer needs for any permitted purpose, unless the law requires it to be kept (APP 11.2).
How similar matters tend to play out
Illustrations of how the law on this page combines on ordinary facts, not predictions. Outcomes depend on the documents and the evidence.
Lower range. An Adelaide cafe group paid a design studio for a logo under an emailed quote. Its new studio now wants to adapt the logo. The first studio owns the copyright, or its freelance designer does (sections 35(2) and 35(6)), and nothing was assigned in writing (section 196(3)). A short assignment and moral rights consent, negotiated now, fixes it.
Middle range. A mortgage broker’s agency uses dynamic keyword insertion, and some headlines pick up a major bank’s name from searchers’ queries. On reasoning like that in Employsure, the broker, as the business publishing the ads, risks contravening sections 18 and 29(1)(h) ([6], [157]). Its agency agreement had no step for approving keyword lists.
Upper range. A retailer approves its agency’s email promotion to 40,000 addresses on a purchased list, with no record of consent. Each email is a commercial electronic message (section 6(1)). The agency that sent them and the retailer that caused them to be sent are both exposed (sections 16(1) and 16(9)). Paying for the list may also have ended any small business operator status the retailer relied on under the Privacy Act (section 6D(4)(d)).
How we act on agency and PR agreements
Our marketing agency agreement lawyers act for businesses engaging agencies and for agencies setting their terms. For a client, the aim is ownership of the work and control of the spend and accounts. For an agency, it is a defined scope and protection from claims it did not make.
| Stage | What happens | What we do |
|---|---|---|
| Proposal | The agency sends its proposal and terms. | Review scope, fees, renewal and liability terms. |
| Drafting | The agreement and first brief are prepared. | Draft approvals, the IP assignment, moral rights consents and data terms. |
| Campaigns | Campaigns run under approvals. | Advise on claims, keyword lists, Spam Act consent and privacy. |
| Dispute | Fees, quality or ownership are disputed. | Advise on the contract, consumer guarantees and copyright. |
| Exit | The client changes agencies. | Enforce handover of material, accounts and data. |
We cannot promise an outcome, and no lawyer can. We can make sure the agreement matches what each side is paying for.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Agency agreement case law
None of the decisions below concerned an agency agreement; each decided a point that applies to one.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| ACCC v Employsure Pty Ltd [2021] FCAFC 142 | Full Federal Court | Keyword search ads conveyed a false government affiliation | [1], [2], [6], [157] |
| Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149 | Full Federal Court | No copyright where a computer process, not human authors, made the work | [118], [169] |
| ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224 | Federal Court | Automatic renewal term in small business contracts unfair | [56], [57] |
| Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21 | Full Federal Court | Elements of breach of confidence; contract does not exclude equity | [29], [39] |
Case notes
ACCC v Employsure Pty Ltd [2021] FCAFC 142
Employsure’s search ads used keywords such as “fair work ombudsman” and did not mention Employsure ([1] to [2]). The Full Court held that by publishing them it conveyed a government affiliation, contravening sections 18 and 29(1)(b) and (h) ([6]), an impression its keyword choices and dynamic keyword insertion produced ([157]).
Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149
The appeal was dismissed because copyright did not subsist in the directories. Perram J said copyright does not subsist where a computer performs the functions ordinarily performed by human authors ([118]), and Yates J that the directories could not be said to originate from authors ([169]).
ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224
On agreed facts, Moshinsky J declared eight small business contract terms unfair and void, accepting that the automatic renewal and price variation terms caused a significant imbalance ([56]). The supplier bore the onus under section 24(4) ([57]). At the time an unfair term was void but not penalised.
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21
An exhaustive contractual definition of confidential information did not exclude equitable obligations ([29]). The Full Court stated the four elements of breach of confidence ([39]) and entered judgment for Optus in equity.
Frequently asked questions
Who owns the work a marketing agency creates?
The agency, or its freelancers, unless the agreement assigns it. The author owns the copyright (Copyright Act section 35(2)), and an assignment must be in writing and signed by the assignor (section 196(3)).
Does paying for a video ad make the business its owner?
Usually, if the business itself commissioned and paid for the film (section 98(3)). If the agency commissioned it, the agreement should pass the copyright on.
Is a business liable for misleading ads its agency wrote?
It can be. The ads promote its own goods or services, and in Employsure the business publishing search ads that conveyed a false government affiliation contravened ACL sections 18 and 29 ([6]).
Does the publisher defence protect a marketing agency?
It can protect an agency whose business is arranging publication of ads, if it received the ad in the ordinary course and did not know and had no reason to suspect a contravention (ACL section 251).
Who is responsible for Spam Act compliance in an agency email campaign?
Both the agency and the client can be. The prohibition covers sending and causing to be sent (Spam Act section 16(1)), and being knowingly concerned in a contravention is also a contravention (section 16(9)).
What must a contract with a telemarketing provider include?
An express provision that the provider will comply with the Do Not Call Register Act and take all reasonable steps to make sure its employees and agents comply (section 12).
Can a small business buy a marketing list without privacy issues?
Not safely. A business that provides a benefit to collect personal information from anyone else is not a small business operator (Privacy Act section 6D(4)(d)).
Can an agency's terms renew automatically?
Yes, but in a standard form small business contract the term may be unfair and void. In JJ Richards, such a term was accepted as causing a significant imbalance ([56](a)).
Can an agency exclude all liability for poor work?
Not where the client is a consumer, which includes buying services for $100,000 or less. A term excluding the due care and skill guarantee is then void (ACL sections 3(3)(a), 60 and 64(1)).
Do I need a marketing agency agreement lawyer?
For a retainer or any agreement deciding who owns the creative, yes. A marketing agency agreement lawyer can match the agreement to how the agency will actually work. A free 30-minute consultation will tell you where you stand.