Who owns client work? Work made for hire, MSAs and what an agency can license

MSA vs SOW: where agency ownership terms live

Most agencies and consultancies work under a master services agreement (MSA) with each client, plus a statement of work (SOW) for each project or retainer period. The MSA usually carries the standing rules: ownership of deliverables, the firm's retained materials, confidentiality, publicity and portfolio rights, and sometimes a clause on AI use. Each SOW describes scope, fees, timing and deliverables for one piece of work.

The ownership answer for any one record can sit in three places:

• The MSA's ownership clause. Typically it assigns “deliverables” or “work product” to the client, often on payment. The definition matters: some cover only what was delivered, others cover everything created under any SOW, including drafts and unused concepts.
• The SOW. A SOW can add a special term for one project, such as client ownership of source files or a stricter confidentiality rule.
• The order-of-precedence clause. It says which document wins when the MSA and a SOW disagree. Many contracts let the SOW win for its own project.

Some clients bring their own paper. Large advertisers and corporate procurement teams often insist on their template, which tends to assign more to the client and say more about confidentiality and AI. Mid-market clients more often sign the agency's template, which usually keeps more with the firm. That is one reason the client mix matters so much for an agency data license.

Work made for hire and IP assignment in agency contracts

Copyright starts with the author. The statute says copyright “vests initially in the author or authors of the work”, and that for a work made for hire the employer or the person the work was prepared for is considered the author (source: 17 U.S.C. § 201(a) and (b), initial ownership and works made for hire (Cornell LII)). The definition of a work made for hire has two parts (source: 17 U.S.C. § 101, definition of work made for hire (Cornell LII)):

1. A work prepared by an employee within the scope of employment.
2. A work specially ordered or commissioned in one of nine categories (a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas), if the parties expressly agree in a signed written instrument that it is a work made for hire.

Two consequences matter for an agency:

• Work your own employees make is usually the agency's first. A designer, strategist or consultant on your payroll creates work for the firm, so the firm is the author of it.
• Most client deliverables reach the client by assignment, not by work for hire. A logo, a campaign or a strategy deck is rarely one of the nine categories, so “work for hire” wording in a client contract is usually paired with an assignment clause. A transfer of copyright ownership is not valid unless it is in writing and signed by the owner (source: 17 U.S.C. § 204(a), transfers in writing (Cornell LII)), which is why MSAs spell it out.

For a data license the practical point is simple. If the MSA assigns a deliverable to the client, the agency no longer owns it and usually cannot license it. If the MSA assigns only final, paid deliverables, drafts and unused concepts may still be the agency's, subject to confidentiality. Each contract answers that differently, so drafts are reviewed client by client.

Freelancers, contractors and white-label work

Agencies lean on freelancers for design, copy, development and production. A freelancer is not an employee, so their work is a work made for hire only if it fits one of the nine categories and a signed agreement says so (source: 17 U.S.C. § 101, definition of work made for hire (Cornell LII)). Otherwise the freelancer owns the copyright until a signed written assignment moves it (source: 17 U.S.C. § 204(a), transfers in writing (Cornell LII)).

• With a signed contractor agreement that assigns IP to you, the work usually counts as yours, subject to the client contract on top.
• Without one, buyers typically scope the freelancer's material out. Records about the work (the brief you wrote, your review comments, hours and cost) can usually stay in.
• White-label and subcontract work usually belongs to the prime agency under its contract with you, so it comes out too.

Freelancers also matter for eligibility. Most programs count only full-time employees, and one counts only full-time US W-2 staff (source: program terms, Regulr buyer directory).

Pre-existing intellectual property: what the agency keeps

Most client contracts carve out what the firm brought to the work. The clause goes by several names: pre-existing intellectual property, agency materials, background IP or consultant tools. Sample “Agency Materials” clauses keep proprietary rights in the agency's own materials with the agency (source: Law Insider, sample "Agency Materials" clauses), and a sample consultant clause says the consultant “retains ownership of any background technology not developed specifically for Client”, while the client gets a license to use it as built into the work product (source: Law Insider, sample "Consultant Tools" clauses).

Material that usually falls on the firm's side of that line:

• Playbooks, frameworks, methodologies, SOPs and onboarding or training material.
• Blank proposal, SOW, estimate, brief and report templates.
• Pricing models, rate cards and estimating spreadsheets.
• Agency-funded research, benchmarks and thought leadership.
• Internal tools, scripts and checklists used across clients.

This is the slice buyers name most often for professional firms. Programs that name consulting and agencies list SOPs and playbooks, templates and operational frameworks, and engagement scoping among the records they want (source: program terms, Regulr buyer directory); our buyer directory lists the programs and links to their published terms. Two cautions: a template filled in for a client is no longer blank, and a framework developed specifically for one client under its SOW may belong to that client.

Client confidential information and client research

Ownership is half the question. Confidentiality is the other half, and it can reach records the firm owns. A typical confidentiality clause covers non-public information the client shares (briefs, budgets, launch plans, sales data, customer data, strategy) and bars using it for anything but the engagement or sharing it with third parties.

• Client-commissioned research. Interview notes, survey data, findings and engagement working papers are usually both client-owned and confidential. One broker that names consulting firms excludes client-confidential findings and client names outright (source: program terms, Regulr buyer directory).
• Briefs and media plans. A blank brief template is yours; a filled-in brief restates the client's plans and usually comes out or is reviewed.
• Client ad accounts and analytics. Data inside a client's own Google Ads, Meta or GA4 account belongs to the client.
• Firm records that mention a client. Timesheets, job cost and project task names are usually firm-owned. They can stay in once the client is replaced with a token and any client strategy in free-text fields is removed.

Who owns each agency and consulting record

Client AI clauses and the ANA media agency template

Client contracts increasingly say something about AI. The ANA's 2023 revision of its media agency contract template requires an agency to get an advertiser's prior consent before using AI applications (source: MediaPost, ANA revises media agency contracts, requires prior client consent for AI (Jun 6, 2023)). Clauses like that are written about using AI on the client's work, and the cautious reading is to keep every record for that client out of a license unless the client agrees.

Your own tools can raise the same issue. Figma, for example, turns content training on by default for Starter and Professional teams, and admins can switch it off in settings (source: Figma Help Center, content training settings by plan). If a client contract bars AI use of its files, check those settings as well. Our guide to agency software terms and exports covers each tool's training and export rules.

How to scope a data license around client work

1. List clients by revenue and contract paper. Note which are on your template and which on theirs, and which have AI, confidentiality or non-use clauses.
2. Sort records into the three bins above. Firm-owned, client-owned, and needs review. Most agencies find that the firm-owned bin holds the most years of history.
3. Exclude whole clients where the paper is strict. It is simpler to drop every record for a client than to clean each file.
4. Tokenize clients everywhere else. Replace client, prospect and staff names with consistent tokens so a job still links from proposal to margin.
5. Write the scope into the license. Name each exclusion, require the buyer not to re-identify anyone, and decide whether your firm's name stays confidential. You approve the scope in writing before anything is shared.

Architects face a parallel question about who owns drawings; our guide to who owns architectural drawings covers how standard design contracts split it. For the full picture of what buyers want from an agency, see the marketing agency and consultancy data licensing guide, and if a sale is on the horizon, our guide to selling a marketing agency covers timing. Our data value checker shows how scope affects value. To see what your firm-owned records could qualify for, check your agency or consulting firm's fit.

Frequently asked questions

Sources

Program terms checked against their own pages on October 15, 2026; our buyer directory lists the programs and links to their published terms. 17 U.S.C., the Law Insider sample clauses, the MediaPost article and Figma's help article read on October 18, 2026.

1. program terms, Regulr buyer directory
2. 17 U.S.C. § 101, definition of work made for hire (Cornell LII)
3. 17 U.S.C. § 201(a) and (b), initial ownership and works made for hire (Cornell LII)
4. 17 U.S.C. § 204(a), transfers in writing (Cornell LII)
5. Law Insider, sample "Agency Materials" clauses
6. Law Insider, sample "Consultant Tools" clauses
7. MediaPost, ANA revises media agency contracts, requires prior client consent for AI (Jun 6, 2023)
8. Figma Help Center, content training settings by plan