Ask #Publaw: Are Pseudonyms Legal?

It’s Wednesday and time for our next addition of #Publaw. Susan Spann is back with us today to talk about pen names–a common question that affects many authors. Without further ado, I give you Susan…

Do I have to take any legal steps in order to use a pseudonym?

Authors can publish under a pseudonym (aka “pen name”) without legal problems as long as the author complies with applicable laws and regulations (if any) and doesn’t use the pseudonym for fraud or other illegal purposes.

Let’s take a look at a few of the legal issues:

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.

1. State or Local Registration. 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 (or the government office responsible for d/b/a/ statements and fictitious name filings) to find out whether the local rules apply to authors’ pen names.

2. Copyright Issues. The standard term of U.S. copyright on creative works is “life of the author plus 70 years.” Anonymous and pseudonymous works have a shorter copyright term: 95 years from publication or 120 years from creation, whichever is less. 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.

3. Taxes. Authors who publish under a pen name are still responsible for declaring all income (and paying all taxes) on appropriate tax returns. Consult an accountant for details if necessary.

4. Inheritance Issues. Pen names can complicate transfer of an author’s assets after death unless the pseudonym is identified in the author’s will, trust, and other estate planning documents. Writers who use a pseudonym should have a written estate plan and make certain the named executor (or trustee, or next of kin) is aware of both the pseudonym’s existence and where to find documentation proving ownership of works published under the pen name.

4. Name Availability (and Trademark). Selecting a name isn’t easy – for parents or for authors. Writers can’t use pen names that “belong” to another author or celebrity without risking a lawsuit and possibly an injunction or legal damages. Try to publish your basketball-playing detective series under the name “Shaquille O’Neall,” and you may find yourself on the receiving end of a cease and desist letter – or, worse, a lawsuit – even though you added an extra “L” at the end of the surname.

5. Defamation. Authors occasionally opt for pen names when publishing a “tell-all” memoir or other controversial work. This isn’t illegal per se, but use of a pseudonym doesn’t protect an author against liability for defamation (libel) and other illegal acts. A pen name shields the author from public view, but provides no shield against a lawsuit. Note: your publisher will disclose your real name to a plaintiff claiming legal necessity. Every publishing contract I’ve ever written or seen contains language allowing the publisher to do so.

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 more questions?

Feel free to ask them in the comments and Susan will answer in the next addition of Ask #Publaw!

ABOUT SUSAN

Susan is a publishing attorney and historical mystery author. Her debut novel CLAWS OF THE CAT (Minotaur) releases July 16, 2013. When not writing or representing clients, Susan enjoys traditional archery, martial arts, horseback riding, online gaming, and raising seahorses and rare corals in her highly distracting marine aquarium. She still consumes books – almost as avidly as spicy Thai dinners. Susan lives in Sacramento with her husband, son, three cats, one bird, and a multitude of assorted aquatic creatures. She is a member of Mystery Writers of America, the Historical Novel Society and the Rocky Mountain Fiction Writers’ Association and is represented by literary agent Sandra Bond of Bond Literary Agency. – See more at: http://www.heatherwebb.net/blog/#sthash.HWt5l0mc.dpuf