Howard Allen Frances O’Brien, Theodor Seuss Geisel, Erika Leonard, and Joanne Rowling – they all adopted one, maybe even two.
No, not children. A nom de plume, more commonly known as a pen name. In this example, Anne Rice, Dr. Seuss, E.L. James, and J.K.Rowling, respectively (and just to be clear, these authors could have adopted children too but I have no idea).
Writers often create stories under pseudonyms or fictitious names. There are many reasons for doing so, and enough has been said on the reasons why (e.g., Tricks and Traps of Using a Pen Name by Helen Sedwick, Should You Use a Pseudonym by Moira Allen, The Pros and Cons of Using a Pseudonym by Howard Zaharoff). If you decide to use a pen name, just beware there are a few legal myths about using pen names still zinging about the Internet and social media channels that writers should not adopt as fact.
Legal Myth No. 1: Authors cannot register copyrights for creative work under a pen name.
Copyrights protect whatever work a writer creates, automatically. While authors tend to use their legal names to register copyrights, authors can register a copyright under their pen names, or both if they like. The copyright registration process provides an author the opportunity to add both their legal name and pen name to the copyright application.
Question is, how anonymous does the author want to stay?
Copyright registrations are searchable public records. If you want to remain anonymous, then register the copyright in your pen name only. But you should be aware that action could affect the copyright term.
Copyrights normally last for the author’s life plus 70 years. But for works published pseudonymously, the term is 95 years from the year of first publication or 120 years from the date of creation, whichever period expires first. While the author’s life plus 70 is usually the longer term, do the math and determine which term best benefits your creative work and your career desires. Maybe the longer copyright term is not worth the sacrifice if a writer has to give up anonymity.
If a pen name is used to register a copyright, the registration can be amended later to add the author’s identity so the term will revert to the author’s life plus 70 term.
If you do not use your real name on the copyright application, you may have trouble proving you own the copyright. As long as someone knows the real identity of the person behind the pen name, proving ownership of the copyright will not be a problem. Then again, if you have been extremely careful about staying anonymous, the proof may be that much harder.
One more tidbit, copyright does not protect a pen name (because you cannot copyright names) but intellectual property protection does exist for a name under certain circumstances (see Legal Myth No. 2).
For more information, see the copyright office fact sheet about pen names.
Legal Myth No. 2: Pen names cannot be trademark protected.
Trademarks exist to protect established brand names from inferior competition.
While the name of a living author is not usually entitled to trademark protection, a pen name can be if certain conditions are met. The author must prove that the name has “secondary meaning” by being part of a unique brand that is used in marketing and commerce, and is widely recognized. Like J.K.Rowling which is a trademark owned by Joanne Rowling.
Legal Myth No. 3: A writer cannot sign a contract using their pen name.
Contracts are an exchange of promises memorialized in writing (either on paper or a digital file) signed by persons who have demonstrated unequivocal intent to be bound by the terms (either personally or for the business they represent). Using a pen name does not affect the validity of the contract. The act of signing, rather than what name was used to sign, is what determines a contract was formed. Using a pen name does not provide any special legal privileges, nor shield a writer from say, a breach of contract claim (see No. 7 below). An author is still bound by the contractual obligations, whether they signed using their legal name or pen name.
The bottom line — signing a contract using a pen name is possible. That said, most contracts involving a writer whose creative endeavors require a pen name are still signed using the writer’s legal name. This is mostly out of convenience. Typically payments and tax matters are managed in the legal name of the writer. However, full disclosure plays a part too. Often contract parties want to know with whom they are contracting.
See my earlier Sidebar Saturdays article for more information on contracts and pen names.
Legal Myth No. 4: You can use another author’s real name as your pen name.
Do not even think about it. Exploiting another’s identity for personal gain will get you sued. Identity theft to develop momentum in a writing career never works. If I used Stephen King as my pen name, I would hear from Stephen’s lawyers pronto.
But you might be able to use another person’s pen name as your own if the circumstances are right. For example, often a publisher will negotiate for ownership of a pen name. Romance writers understand this all too well. The publisher knows an authors’ pen name can become well-known and a marketable commodity. If the publisher retains all rights in the pen name, the publisher can then hire a troop of writers to create new work under the well-known pen name.
Legal Myth No. 5: You can defame your enemies using a pen name and avoid liability.
While a pen name might make it difficult for a plaintiff to figure out who is behind the pen name, eventually plaintiff’s lawyers will be able to prove that the writer and the pen name are the same. It is the age of the Internet, where almost any information is available if you know where to search. Pen names cannot and should not be used for any unlawful purpose, either civil or criminal.
Legal Myth No. 6: A pen name will allow an author to avoid paying taxes.
The old cliché about death and taxes comes to mind – two things you cannot avoid. Attempting to skirt income tax by using a pen name would be tax fraud. Just because money is earned under your pen name, does not mean you can cut your taxable income and avoid paying taxes. Uncle Sam always gets his money.
Legal Myth No. 7: A pen name will prevent breach of contract liability.
If a contract has been signed under the author’s name, the author cannot avoid contract obligations by hiding behind a pen name. For example, if an author’s contract has a non-compete clause or right of first refusal for the next book, that author cannot use a pen name to publish a competing work or publish under a pen name to avoid giving their publisher first crack at the new work.
There are many reasons to use a pen name, anonymity for one. But if you use a pen name, be cognizant of the legal nuances created that you may need to navigate. Use a little common sense, or when in doubt, consult a qualified lawyer.
One last point, and here comes the disclaimer (lawyers, we love our caveats), this is not legal advice and does not form an attorney-client relationship. Basically, I am not your attorney, only a writer-attorney helping other writers to understand publishing law issues. If you feel you need legal advice, hire competent counsel in your jurisdiction before taking any action.