Employee-generated content is having a moment. So are the legal questions around it

Tapping employees to become creators sounds like a win-win. Brands get authentic content from people who already know their products, while employees build audiences of their own.

It's no surprise, then, that companies are starting to formalise the approach.

In the UK, retailer Marks & Spencer has embraced the approach through Kathryn Turner, its director of product development for food, who has built a following sharing behind-the-scenes TikToks from inside stores, taking viewers inside product development and quality control.

US companies are taking the idea a step further. Starbucks recently expanded its Green Apron Creators initiative through a partnership with TikTok, giving baristas campaign briefs and a share of advertising revenue for branded content. Gap followed last month by opening its creator programme to employees across Old Navy, Gap, Banana Republic and Athleta, allowing staff to earn commission by creating social media content.

The commercial case is easy to make. But as companies encourage employees to build valuable audiences, a more difficult question follows: who owns them?

A marketing opportunity – and a legal headache

Thomas Walters, chief innovation officer and co-founder of Billion Dollar Boy, said the shift reflects something audiences have been signalling for a while.

"For a long time, we've known that audiences are showing a preference for authentic content," he told The Daily Influence. "Employees aren't just selling a brand; they are the brand."

He argued employee creators bring something to the table that paid influencers often can't.

"Traditional influencers bring reach and creativity, but employees can potentially bring even greater relatability – they're literally the store assistants you see working there every day so they know their stuff."

Walters said the strongest strategies combine both approaches, using influencers for scale and employee creators for depth and authenticity.

But he also pointed to a question many brands have yet to answer.

"There's also the issue of content ownership. If an employee creates viral content, who owns it? Brands need clear agreements to ensure both parties are protected."

Frank Poe, founder of creator economy-focused law firm Poe Law, said the ownership question many brands are only beginning to ask may already have a legal answer.

Speaking to The Daily Influence, he said work created by an employee as part of their job would generally fall under the "work for hire" provisions of US copyright law, meaning ownership belongs to the employer rather than the individual.

"If the employer has made content creation as part of the job of the employee, they would generally maintain access to accounts, DMs, followers and analytics," he said.

That makes personal accounts particularly problematic. Poe argued employees posting company content through their own social channels would be "a very bad idea from the start". Even accounts created specifically for work would likely have to be handed over to the employer when the employee leaves.

When creator and employer part ways

Formal programmes like Gap's address many of these questions upfront.

Organic employee creators present a different challenge. Someone who gradually builds an audience through their day-to-day role may not think about ownership until they decide to leave. By then, what began as an employee sharing their work may have become one of the company's most valuable marketing assets.

That leaves companies with a difficult dilemma.

"How does a company benefit from a creator raising so much goodwill only to quit or be fired, signalling to the audience that either the creator was not what they seemed or shame on the company for making personnel decisions?" Poe said. "It seems like a no-win."

The challenges don't end there. Employees who encourage followers to move with them after leaving could also find themselves in legal grey areas.

"Given that the creator would be drawing customers and potential customers away from the company, it is likely that even states that are least sympathetic to noncompete clauses would have to acknowledge that there is a business interest in stopping this behaviour," he said.

As employee-generated content becomes more common, companies may find that building creator programmes is easier than deciding what happens when those creators leave.