Today’s topic came to me through a comment and question in the #PubLaw Twitter feed, from an author curious about the use of pen names by author-publishers.
Most people know that authors can legally use a pseudonym, or “pen name,” in place of his or her own name on published works. This is true for self-published works as well as traditionally published ones, and pen names can be used in non-fiction as well as on novels. (One caveat: most non-fiction sells primarily as a result of the author’s fame or renown, so unless you’ve developed a platform under a pseudonym, changing your name may have a negative impact on non-fiction sales.)
However, use of pseudonyms can sometimes create additional issues for authors, so it’s important to be aware of the legal ramifications of pseudonym use.
Authors Must Investigate and Comply With Applicable State and Local Laws (If any).
Some states (and government entities) require people to register fictitious business names. Although this doesn’t normally apply to pseudonyms, authors should check with a local attorney to ensure that the local rules don’t apply to pen names. These regulations often do apply to publishing imprints the author uses when self-publishing creative works, because an imprint is similar to a business–it’s a publisher name. Consult an attorney to determine what registration requirements may apply, and be sure to comply with them before releasing works under an imprint you own.
Registering Copyright In Pseudonyms Can Shorten the Copyright Term.
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.
Tax and Contract Issues.
Whether you publish traditionally or as an author-publisher, you must declare all income under your real, legal name — even if it was earned using a pseudonym. Also, you must file and pay your taxes as required by law. Author-publishers should realize that receipt of publishing income qualifies them as “self-employed” or “independent contractors”–which may require payment of quarterly estimated taxes (whether or not you also have a job as an employee where part of your income is withheld by the employer).
Authors who publish under pseudonyms must declare all income (and pay all taxes due) on appropriate tax returns and at appropriate times of year. (Note that estimated taxes are paid quarterly, on the 15th of April, June, September, and January). Also, author-publishers should enter into contracts (e.g., for cover art or distribution) using their real names. The contracts may reference the pseudonym, but legally binding contracts need to use a legal name.
Have an Estate Plan in Place (That Addresses the Pen Name).
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.
Don’t Pick Someone Else’s Name (or 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.
Pen Names Will Not Protect You Against Lawsuits.
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 lawsuits. 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 allow the publisher to “out” authors if a lawsuit arises – self-published authors will have to “out” themselves. Essentially: a pseudonym helps limit public disclosure of your name, but won’t help you if legal claims are made 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 stay within the law should find the use of a pen name relatively free of legal trouble.
Have questions? Feel free to ask here or tweet me (@SusanSpann) using the #PubLaw hashtag!