Resume Writer asks: Who owns the copyright - me or my client?

Question

I'm a professional resume writer (among other things). Clients regularly pay me to completely overhaul their resumes. Over the years I've amassed a large collection of well-written resumes. I would like to self-publish a book on Amazon on the topic of resume writing with lots of full resume examples as well as bullet point/resume section examples so that people can more easily write their own resume. (I've found that the problem with most of the books on the market is a lack of examples).

Initially I had tried to find a lawyer to help me understand how much of the content of each resume I needed to modify in order not to infringe on the copyright that I presumed my former clients’ owned.

Then, reading a copyright book I learned about the idea of copyright ownership. Since I am an independent contractor (I work for myself via my website, and since I have never used a formal contract with clients (and certainly never signed a ‘work for hire’ agreement with any of my clients), then the question I have for you is - do I own the copyright to the resumes that I have written over the years?

The intuitive answer seems to be ‘no’ but the legal answer seems to be ‘yes’. Have you ever dealt with this specific question before? I was not able to find anything online about it - yet it seems to be a rather important question since many people have their resumes written for them each year and probably assume that they are the ‘owner’ of their resume (since it derives from their personal life story).

As far as my book goes - does this mean that (in theory) I could publish a resume I wrote for a past client (perhaps only changing their name/phone/address as a courtesy) with no legal ramifications whatsoever? Again, my intuition is ‘no’ but the legal answer seems to be ‘yes’. Of course, in practice, I would modify any resume I published significantly enough that the original client would not be identifiable.

My process: I’m including a link to a folder where I’ve placed 4 files to illustrate my process: https://drive.google.com/drive/folders/1TBlQH1yco-UDS02le58Dti_xrUzMQEX-?usp=sharing

File 1 = Client’s original resume that they wrote on their own before working with me

File 2 = A brainstorming document the client filled out. This served as the basis for a 1.5-hour conversation where I asked questions to learn more about their work history.

File 3 = The new resume I wrote for the client (from scratch).

File 4 = A modified version of the resume from File 3 - this is how I thought I might modify an actual resume for publication in the book (Changing dates, names, locations, and modifying some, but not all, bullet points).

I think there is a good possibility that my understanding of the law is totally off base.

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This is an interesting Q&A post on Avvo.com

https://www.avvo.com/legal-answers/are-resumes-sent-to-companies-subject-to-privacy-l-1809029.html

Are resumes sent to companies subject to privacy laws?

Question: I submitted a resume to a company last year. I recently "googled" myself and found that I was able to download that resume that I submitted to that company off of their "secure" server in its original form. All my private history on that resume is publicly available to anyone who knows to look for it. I feel like this is a severe breach of privacy and would like pursue legal recourse if possible. Looking to understand how and if this is possible?

Answer: Unless you had an expectation of privacy in distributing your resume, hard to see how you would have a claim. Generally resumes are created to be published and shared with others. Not sure how or why they would have made it accessible on the Internet, but again without there being an expectation of privacy there is no claim. I would recommend contacting the company and asking them to remove it. Hope this helps. I am also redirecting this to the Privacy practice area as you may receive a different take from that group.

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I'm adding some more details here in response to some of the answers and comments:

On the question of whether my work is a derivative work or not. In one sense, the resume 'derives' from a client's life story and personal experience. That said, I saw online that facts are not copyright-able and also saw that when an interview is conducted its the interviewer (me) or the memorializer of information (me) who owns the copyright.

As to the actual transformation of the client's story into a resume. The resumes I write are what I have coined as story-based resumes and are quite different from the classic resume. Each is very unique. Here's an example of how the client originally presented their most recent position (in the resume they had written) and how I presented it.

Client's Work Zurich North America, Schaumburg, IL Claim Specialist II January 2018- Present

• Handles complex commercial line claims for Property & Business Income damages. Develops and maintains strong business relationships by regularly communicating with customers, brokers, and inside staff. Evaluates claim facts and plans for appropriate negotiation strategies to bring claims to resolution. Trains and mentors new adjusters.

My Work

• At ease managing complex claim discovery process and multi-party negotiation calls with CEOs, CFOs, brokers, assessors, technical experts and legal counsel; Many variables influence coverage and judication around repair, replace, write down; A typical claim:

------- $10M new airport construction; Contractor (insured) poured concrete on a cold day → runway cracked; Investigated opposing narratives from engineer ‘use a sealant’ and airport leadership ‘replace runway’; Analyzed policy in which cracking was excluded but extreme temperature changes were not; To resolve claim, reviewed contract (contractor ←→ airport) and sought input from legal team

------- Airport owner, ‘We’re on this call to make a decision right now!’; The owner’s attempt to reframe priorities and fast-track Zurich’s due diligence procedures elicited a firm, but emphatic, response from me; A harmonious working relationship was maintained

• Took on 3 water damage claims at a hotel with an upset owner; Reanalyzed colleague’s prior work and assumptions on claims; To owner’s dismay, I declined his $30k concession fee claim but managed to offset that (and create goodwill) by consolidating his 3 water claims into 1

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On the question of privacy. I did see an interesting paper here (but didn't yet pay to download it). I wonder if a person's narrative about their professional life is similar to that of a biography?

Lives and works — biography and the law of copyright

https://www.cambridge.org/core/journals/legal-studies/article/abs/lives-and-works-biography-and-the-law-of-copyright/B9295A91FBF801BF3B70B4DF852BFEF2

This is also an interesting paper Protecting Privacy Through Copyright Law? Pamela Samuelson* but the cases she highlights (e.g. pictures from Julia Roberts' wedding being published) seem to be too far removed from my situation

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2435288 view here: https://drive.google.com/file/d/1aLDiU7wSyep3_U9G8QDr3gEhYYNkMsRh/view?usp=sharing

In making their now famous argument for recognition of a legal right to privacy, Samuel Warren and Louis Brandeis relied surprisingly heavily on copyright norms and caselaw to support the idea thatprivacy was and should be a protectable interest.1 They observed:

The common law secures to each individual the right of determining, ordinarily, to whatextent his thoughts, sentiments, and emotions shall be communicated to others. Underour system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them.

The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word or by signs, in painting, by sculpture, or in music. Neither does the existence of the right depend upon the nature or value of the thought or emotions, nor upon the excellence of the means of expression. The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public.2 The right to control the dissemination of these works may be partly grounded in property rights.

But Warren and Brandeis thought that this was not the entire explanation. “[W]here the value of the production is found not in the right to take the profits arising from publication, but in the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term.”3

Suppose, for instance, a man recorded in a letter or diary entry that he did not dine with his wife on a certain day. Warren and Brandeis reasoned that “no one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully; and the prohibition would not be confined to the publication of a copy of the letter itself, or of the diary entry; the restraint extends also to a publication of the contents. What is the thing which is protected? Surely, not the intellectual act of recording the fact that the husband did not dine with his wife, but that fact itself. It is not the intellectual product, but the domestic occurrence.”4 The article discussed numerous copyright cases in which copyright claims were used to protect the privacy interests of individuals.5 Warren and Brandeis concluded that a right to privacy should be recognized as a separate legally protected interest rather than being a nascent interest indirectly protected by copyright or other laws.

Answer 1

This is a common issue when a contractor is hired to write a technical document. Under united-states law, at least, the answer is clear. The contractor owns the copyright unless there is a written agreement transferring the copyright. This may or may not be a work-for-hire agreement, and there are some significant differences in the effects if it is, but an agreement in writing there must be. Otherwise the author (the contractor) retains the copyright. If you were an employee, the result would be the reverse.

Even though you hold the copyright, I think you should, at a minimum, change any identifying details. There might be an invasion of privacy issue otherwise, and there surely would be an ethical issue.

However, you do not hold the copyright of any original version that the client wrote. The client holds that, unless there was a written agreement giving you the copyright. If your final resume is sufficiently close to the original as to be a derivative work then you must have the client's permission before publishing it.

If this is in the US, the issue of the client's copyright on the original version might be avoided via a claim of Fair Use (FU), as a comment mentions. This is a specifically US legal concept, although some other countries have a somewhat similar but narrower concept of Fair dealing. There is no automatic formula for what use will be considered a fair use -- the specific facts of the matter must always be considered. The statute lists four factors to consider, but the court may consider others as well, and caselaw says no one factor is dominant in all cases, they must be balanced

The four factors as set out by 17 USC 17 are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Here as the writer would be using the whole work, factor (3) , the amount of the work used, would tilt against FU. The use is not educational or non-profit, nor transformative, so factor (1) also tilts against FU. There is probably no market for the original, which tilts factor (4) toward FU. The original is highly factual which tilts factor (2) toward FU. There is no telling where a court would come out, and the OP doesn't want to rely on a risky issue. If anyone were to relay on fair use for this sort of thing, consulting an attorney who could look at specifics would be a good idea.

Answer 2

Is there a reason why you want to include real examples in the book? There is no implication that an example is real unless you make that claim.

I think you should consider how much effort it will take to rewrite existing resumes enough to avoid all of the issues already mentioned (and others) vs. writing new resumes about fake people specifically for the book.

My apologies if this non-lawyer answer is inappropriate, but I do have some connection to this topic. I'm in a similar position to you as a paid writer who does a lot of work with no formal agreements on this sort of thing, and also with formal agreements in many cases. I would never reuse content that a client has paid for in any situation.

Answer 3

It's not just copyright. My resume contains my private information. If you publish my resume, that's a violation of my privacy. If I find out, I'll come after you for that. And it will kill your business, because nobody will want you to write their resume and then see it published in a book.

As far as copyright is concerned: First, you created a derivative work of my own resume, so you need my permission to copy it. Two, there is an implied contract between you and me, and if you assume you have the copyright, I can take you to court to get a decision what the implied contract is.