Creators vs. Corporations: Who Should Own Employee-Generated Content? Diving Into the #GreatDebate

In the modern digital economy, content is king. Companies in nearly every industry have embraced content marketing as an essential growth strategy. At the same time, the rise of social media and online publishing has made personal branding paramount for career-minded professionals. These two trends collide in a high-stakes debate: When an employee creates content for their company, who owns that content?

It‘s not just an abstract philosophical question. The answer has major implications for both businesses and individual creators. Companies want to maintain control over their messaging and intellectual property. Employees want to receive recognition for their work and retain the ability to showcase their creations. So who should have the ultimate say?

The debate has kicked into high gear in recent years as more and more employees find themselves in content creation roles. A 2022 survey by Contently found that 65% of companies now have an in-house content studio, up from just 35% in 2018. And according to a 2021 report by Edelman, 74% of employees believe building their personal brand is important to their career success.

With so much on the line for both parties, it‘s no surprise that disputes over content ownership have started spilling into courtrooms and public view. In this article, we‘ll dive deep into the legal, business, and ethical considerations around employee-generated content. We‘ll examine arguments from both company and creator perspectives, analyze real-world examples, and offer strategies for finding a middle ground.

The Legal Landscape: Work for Hire and Employment Contracts

On the surface, the legal question of who owns employee-created content seems straightforward in the United States. The copyright law principle of "work made for hire" states that content created by an employee within the scope of their employment belongs to the employer by default.

Here‘s how the U.S. Copyright Office explains it in Circular 31: "If a work is made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright unless both parties involved have signed a written agreement to the contrary."

Seems cut and dry, right? Not so fast. The devil is in the details when it comes to applying work-for-hire doctrine to the modern content creation environment. For starters, it only applies to full-time employees, not independent contractors like freelance writers. And there can be ambiguity around whether creating certain types of content falls within the scope of an employee‘s job duties.

Additionally, many employers now include intellectual property assignment clauses in their employment contracts. These clauses specify that any IP created by the employee in connection with their job belongs to the company, even if it‘s outside the narrow bounds of work for hire. However, the enforceability of overly broad IP assignment clauses has been challenged in court.

There have been several high-profile legal battles over employee content ownership in recent years. In 2013, PhoneDog sued former employee Noah Kravitz for taking his company Twitter account with him when he left, claiming the account‘s 17,000 followers were a $340,000 company asset. The case settled out of court.

More recently, in 2021 journalist Avi Asher-Schapiro filed a lawsuit against Vice Media, alleging that the company owed him money for content he created as a freelancer that remained on the Vice website after his contract ended. The case is ongoing.

These cases illustrate the thorny legal issues that can arise around content ownership, especially in situations involving social media accounts or content that lives on after an employment relationship ends. While work for hire is the default, the details of employment contracts and the specific circumstances matter greatly.

The Business Perspective: Content as Company Asset

From a business standpoint, companies have compelling reasons to want to retain ownership and control over employee-created content. For one, content is increasingly seen as a valuable business asset. In a 2019 survey by the Content Marketing Institute, 49% of B2B marketers said the content their team created was one of their organization‘s most important assets.

When a company invests time, money, and resources into content creation, they understandably want to ensure they have full control over how that content is used and distributed. They don‘t want to risk an employee walking away with valuable intellectual property.

There are also brand consistency and reputation issues at play. A company‘s content is part of its public face, and employers want to maintain control over messaging, voice, and quality. They may worry that an employee sharing company content on personal channels could dilute or misrepresent the brand.

"Content is an expression of the company‘s ideas, not just the individual creator‘s ideas," argues Ben Levi, Chief Operating Officer at Blue Apron, in a 2019 interview with Digiday. "It‘s natural for the company to feel a shared sense of ownership."

Companies also express concern about what happens to their content if an employee leaves to work for a competitor. They don‘t want valuable assets walking out the door to potentially benefit a rival.

However, some argue that an overly controlling approach to content ownership can be counterproductive for companies. If employees feel they have no stake in the content they create, they may be less motivated to produce their best work.

"When you hire a creator, you‘re not just buying their output. You‘re buying their unique voice, perspective, and audience," says Amanda Natividad, VP of Marketing at SparkToro. "If you stifle that with restrictive ownership policies, you lose out on what makes them valuable in the first place."

The Creator Perspective: Building a Personal Brand

Employees who create content have their own set of concerns around ownership. For many, content creation isn‘t just a job duty; it‘s an integral part of their professional identity and personal brand.

The concept of personal branding has exploded in the digital age. Platforms like LinkedIn, Medium, and Twitter have made it easier than ever for individuals to build a following around their ideas and expertise. For many content creators, their personal brand is a valuable career asset that they want to cultivate and protect.

"My writing is an extension of me. It‘s my thinking, my voice, my ideas," says Ashley Faus, a content strategy lead at Atlassian and Top Voice on LinkedIn. "While I‘m happy to create content for my employer, I also want to maintain a sense of ownership and control over my body of work."

There‘s also the practical consideration of being able to showcase your work to future employers or clients. If all the content you‘ve created belongs solely to your former employer, it can be difficult to demonstrate your abilities and experience.

Interestingly, some employees see creating content they‘re proud of as a kind of insurance policy in an uncertain job market. "In today‘s world, no job is guaranteed," says Paul Ollinger, a comedian and former Facebook employee. "But if you build a strong personal brand through your content, that‘s an asset that you can take with you wherever you go."

Employees argue that companies benefit from their work building a personal brand because it often leads to greater visibility and credibility for the company. An analysis by Onalytica found that employee-shared content gets 8 times more engagement than content shared through branded channels.

Additionally, many employees believe it‘s only fair for them to have some stake in content that derives value from their unique creative contributions and personal reputation. "If my insights and writing are what make a piece of content valuable, then I should have some say in how it‘s used," argues Faus.

Striking a Balance: Strategies for Shared Ownership

Given the competing interests at play, is there a way for companies and content creators to find a middle ground? Many experts say yes, but it requires intentional planning, open communication, and a willingness to get creative with ownership arrangements.

"The key is having a clear agreement in place from day one," advises Anthony Mingioni, an employment lawyer who specializes in intellectual property issues. "Both parties need to spell out exactly what‘s being created, who will own it, and how it can be used."

Mingioni recommends that companies develop a content ownership policy that covers all the key scenarios, from an employee sharing company content on personal channels to an employee leaving the company. The policy should balance the company‘s need for control with the employee‘s interest in recognition and continuing to showcase their work.

Some potential arrangements that can strike this balance include:

  • Licensing: The employee retains ultimate ownership, but grants the company broad rights to use and distribute the content. This could be an exclusive license during the term of employment, becoming non-exclusive or expiring when the employee leaves.

  • Joint ownership: Both the company and the employee have full rights to use and license the content. This requires clear terms around attribution and revenue sharing to avoid conflicts.

  • Selective ownership: The company owns content that is directly related to the employee‘s job function and created using company resources, while the employee maintains ownership of content created outside these parameters (e.g. personal blog posts, side projects).

  • Attribution: Regardless of ownership, the company agrees to always provide clear attribution recognizing the employee‘s role in creating the content.

The most appropriate arrangement will depend on the specifics of the employment relationship, the type of content being created, and the needs and goals of both parties. The key is to have these conversations early and to formalize the agreed-upon terms in writing.

Other best practices for content ownership include:

  • Provide value for value. If companies want employees to create outstanding content, they need to provide outstanding support and compensation in return. This could include things like training, promotion opportunities, and financial incentives tied to content performance.

  • Celebrate and promote the creator. Even if the company owns the content, they should still highlight the individuals behind it. Promote employee creators on company channels, encourage them to share their work, and support their professional development.

  • Be flexible. Blanket policies may not fit every situation. Be willing to negotiate special arrangements for unique cases, such as a highly personal thought leadership piece or content that an employee creates largely on their own time.

  • Plan for departures. Have a clear offboarding process that specifies what happens to an employee‘s content contributions when they leave. Many companies choose to keep the content live with an added disclaimer about the contributor‘s departed status.

  • Communicate, communicate, communicate. The more both parties communicate openly throughout the employment relationship, the less likely ownership issues are to arise. Schedule regular check-ins to ensure everyone is on the same page.

Putting It All Together: How Leading Companies Approach Content Ownership

So what does this look like in practice? Let‘s examine how a few leading companies approach the issue of employee content ownership.

The technology giant has a detailed policy that aims to balance employee and company interests. Key provisions:

  • Microsoft owns all IP created by employees within the scope of their employment.
  • However, Microsoft grants employees a "non-exclusive, perpetual, irrevocable, worldwide, royalty-free license" to use this IP for personal and non-commercial purposes.
  • Employees can request special permission to use Microsoft-owned content for other purposes, such as a personal business venture.

"We want to empower our employee creators while still protecting Microsoft‘s legitimate interests," explains Brad Smith, Microsoft‘s President and Vice Chair. "Our policy aims to strike a fair balance."

The marketing software company takes a slightly different approach. Rather than claiming outright ownership of employee-created content, HubSpot‘s policy focuses on licensing and attribution:

  • Employees grant HubSpot a perpetual, non-exclusive, worldwide license to use and modify their contributed content.
  • Employees can continue to use and share the content they create even after leaving HubSpot.
  • All employee-created content is prominently attributed with a byline linking to the creator‘s bio.

"Our philosophy is that content should be a win-win for the company and the creator," says Kieran Flanagan, HubSpot‘s SVP of Marketing. "We want employees to feel a strong sense of ownership in what they create."

The people management platform startup has a unique content ownership arrangement for its Lattice Library product:

  • Contributors are paid a flat rate fee for each piece of content.
  • The contributor retains ownership, while Lattice receives an exclusive license for one year.
  • After the exclusivity period, the contributor can republish the content on their own channels.

"It‘s important to us that creators feel valued and empowered," says Lattice‘s Head of Content Sar Haribhakti. "This model allows us to compensate them fairly while still getting business value from the content."

Conclusion: The Future of Employee Content Ownership

Clearly, there‘s no one-size-fits-all solution to the question of who should own employee-created content. The right approach will depend on the unique needs and circumstances of each company and creator.

However, a few key themes emerge from the debate:

  1. Content ownership matters. It‘s not just a trivial concern. The stakes are high for both companies and creators, so it‘s worth investing time to get the arrangement right.

  2. The old rules don‘t always fit. Work-for-hire doctrine made sense in a world of clear-cut employer-employee relationships. But the modern content economy requires new paradigms.

  3. Mutual benefit should be the goal. The best content ownership arrangements are win-win. They protect the company‘s business interests while still giving creators a meaningful stake and sense of empowerment.

  4. Communication and flexibility are key. One-and-done ownership clauses buried in an employment contract aren‘t enough. Companies and creators need ongoing dialogue and adaptability as needs evolve.

As the debate continues to unfold, the most successful organizations will be those that approach content ownership not as a zero-sum game, but as a chance to build mutually beneficial partnerships with their creative talent. The creators who thrive will be those who advocate for their interests while still delivering value for their employers.

In the end, content is a team sport. The more companies and creators can align their interests and work together, the better the content – and the results – will be. As HubSpot‘s Flanagan puts it: "When it comes to content, a rising tide really does lift all boats."