When a long-time employee retires—especially one who has become the “face” of your business—the question comes quickly can we keep using their content? Their videos? Their name and likeness? For many businesses, the answer is not as simple as “we own it, so yes.” In New York, this issue sits at the intersection of intellectual property law and an often-overlooked area: the individual’s right to control their name and likeness. And getting it wrong can create real legal exposure.
The Ownership Trap
Most employers correctly assume that content created by an employee during their employment belongs to the company. That’s generally true. If your employee created social media posts, marketing videos, blog articles or other branded content as part of their job, that content is typically considered a “work made for hire,” and the company owns it. But here’s where many businesses get tripped up: owning the content does not mean you own the person’s name and likeness. This can be complicated when the employee is essentially the face of the brand. In New York, a person’s name, image, voice and likeness is protected under statutory privacy/publicity laws. That means you cannot use someone’s identity for advertising purposes without written consent. So while you may own the video your employee starred in, you do not automatically have the right to continue using their face in new marketing campaigns after they retire.
In most cases, employers can keep existing content live on company platforms, maintain archives of past campaigns and leave social media posts intact. This is generally viewed as historical or editorial use, which carries lower legal risk.
Problems arise when businesses move beyond passive use and into active promotion. For example:
- Reusing an employee’s image in a new ad campaign
- Featuring them prominently on your homepage after they’ve left
- Running paid ads using their likeness
- Suggesting (even indirectly) that they still endorse your business
At that point, you may be crossing into unauthorized commercial use, which New York law takes seriously. You will need to see what rights you have in writing from your employee. If your employment or media agreement includes a release for use of name and likeness, post-employment usage rights, and clear language allowing continued marketing use, you are in a much stronger position. If not, you are operating in a gray area—one that can quickly become a dispute.
From a legal perspective, the safest approach is not just about what you can do—it’s about what you should do. Even if you technically own the content, continuing to feature a retired employee heavily in your marketing can create confusion in the marketplace, damage your credibility and strain relationships with former team members. And in some cases, it can invite claims for misappropriation or false endorsement, especially when the parting was under contentious or less than ideal circumstances.
If your business relies on employees as public-facing influencers, this issue is not hypothetical—it’s inevitable. The best time to address it is before the relationship ends, and even better, at the time of employment. Because once your “face of the brand” walks out the door, you may still own the content, but you don’t automatically own the right to keep using them unless your written agreements provide for such rights.
If you need assistance with intellectual property issues, reach out to Tracy at [email protected]. Tracy Jong is a Senior Attorney at Evans Fox LLP with 30 years of experience focusing her practice in business law, intellectual property and licensing for alcohol and cannabis. Tracy Jong is a member of the New York Bar and is a registered attorney at the United States Patent and Trademark Office. She can be reached at [email protected].
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The content has been prepared for informational purposes only; it should not be construed as legal advice, does not create or constitute an attorney-client relationship, and readers should not act upon it without seeking professional counsel.