Thursday, May 23, 2013

A Different Kind of "Whodunit" - The Legalities of Pen Names in Publishing

Today we're taking a look at a different kind of legal issue: the use of pseudonyms (aka “pen names”) in publishing.

The arguments for and against pen names are numerous, and I won’t take the time to go into them here. An author who chooses to publish using a pseudonym should do so after full consideration of the business-side pros and cons.

The legality of using a pen name isn’t in question. As an objective idea, it's legal. Famous (and not-so-famous) authors have used them for years. The bigger question – and one fewer authors can answer – is what legal hurdles that pen name may create down the line. Let's look at a few:

1. State or Local Registration. Some states (and/or local government entities) require people and companies to register fictitious business names. Although this generally applies to businesses rather than authors, you should check with a local attorney to ensure that the  rules in your area don't require registration of your pseudonym as well. (A note: registration requirements are more likely if you're operating a company, such as a corporation or LLC, under your pen name.)

2. Copyright Issues. Standard U.S. copyright protection on creative works lasts for the life of the author plus 70 years. However, anonymous and pseudonymous works are protected for the shorter of 95 years from publication or 120 years from creation. Where an author lives for many years after publication of the work, publishing under a pseudonym may result in a shortened copyright term. Authors can circumvent this problem by registering their identities (and pen names) with the U.S. copyright office, but that registration can be accessed by the public – meaning that registered pen names are not truly anonymous or untraceable.

3. Taxes. Authors who publish under a pen name are still responsible for declaring all income (and paying all taxes) on appropriately prepared and filed tax returns.

4. Inheritance Issues. Pen names can complicate transfer of an author’s assets after death. Writers who elect to use a pseudonym should have a will that addresses the issue and ensure that the named executor (or next of kin) is aware of the existence of the pseudonym and where to find written documentation proving ownership of the pen name.

5. Name Availability (and Trademark issues). Selecting a name isn’t easy – for parents or for authors. You can’t use pen names that already “belong” to another author or a celebrity (not without risking a lawsuit, anyway). If you try to publish your basketball mystery series under the name of “Larry Bird,” you may find yourself on the receiving end of a cease and desist letter – or, worse, a lawsuit.

6. Defamation. Authors occasionally opt for pen names when publishing a “tell-all” memoir or other controversial work. This isn’t illegal per se, but it also won’t protect the author against claims of defamation (libel) and other illegal acts. A pen name may shield the author from public view, but it provides exactly zero protection against a lawsuit - and your publisher will have to disclose your contact information if a lawyer comes calling with a legal complaint against you.

These aren’t the only legal ramifications of using a pen name, but authors who take care to comply with legal registration requirements, register their names with the copyright office, pay taxes promptly,  and otherwise operate within the law should find the use of a pen name relatively free of legal trouble.

Teaching the kids to call you "Sam" in public’s another matter.

Susan Spann is a California publishing attorney and the author of Claws of the Cat (Minotaur Books, July 16, 2013), the first novel in the Shinobi Mystery series featuring ninja detective Hiro Hattori. You can find her on twitter @SusanSpann   


Julie Luek said...

This is very interesting to me. I use a different writing name, mainly because my real name is long and difficult to pronounce, and I wanted people to remember my name (they never would with my legit name). Some of these risks are very far off and maybe only a worry to Hemingway type writers. But you bring up some good points to consider.

Laura Eno said...

I like the idea of people calling me Sam...
Good points. I didn't know that some locales want a pen name registered.