Twas the Night Before Christmas…and What’s in a Name?

Today’s Holiday publishing post takes a page from “Santa” and looks at the use of pseudonyms (aka “pen names”) in publishing.

The arguments for and against pen names are numerous, and also next week’s topic. Authors should use a pseudonym only after full consideration of the business-side pros and cons. Today, let’s take a look at the legal issues pen names can raise for authors who choose to use them.

The legality of using a pen name isn’t in question. 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. Let’s look at a few:

1. Remember to Investigate and Comply With State and Local Registration Requirements. Some states (and local government entities) require people and companies to register fictitious business names. Although this generally applies to businesses rather than authors, authors should check with a local attorney to ensure that the local rules don’t apply to pen names as well.

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. Contracts and Taxes. Authors who publish under a pen name are still responsible for declaring all income (and paying all taxes) on appropriate tax returns. Normally, the publishing contract is made in the author’s legal name, with the pseudonym listed as the author’s writing name in a separate clause. The publisher will refer to the author by pseudonym in public, but issue checks to the author in his or her legal name

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). Selecting a name isn’t easy – for parents or for authors. Writers can’t use pen names that already “belong” to another author or celebrity. 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. Pen Names Are Not Shields Against 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 actual author against claims of defamation (libel) and other illegal acts. A pen name may shield the author from public view, but it does not provide protection against a lawsuit. The indemnity provisions in publishing contracts will allow the publisher to “out” you if a lawsuit arises.

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 stay within the law should find the use of a pen name relatively free of legal trouble.

Have questions about this or other publishing law issues? Ask away in the comments or ask me on Twitter (@SusanSpann) using the #PubLaw hashtag!

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