A Writer by Any Other Name: Copyrights and Writers (Part 8)
Since the eighteenth century, writers have been writing under a name different from their given names. A few have chosen a different form of their own name, like a diminution or combination of their first, middle and last names. Others have chosen an entirely different name, far removed from their own. A few others have chosen a different name for each genre of their work, which has resulted in upto 11 personalities for some writers. Reasons for these pseudonyms or nom de plumes are many, including a foray into diverse genres, a need to conceal gender or legal identity, or simply a preference for a more memorable name.
At times, publishers have created a pseudonym to unify works of different writers for the same series of books. This allows the publishers greater freedom in choosing writers to continue a series after the original writer stops writing, or if the publisher decides later to publish a prequel or spin-off to the original series.
This post looks at a few legal issues that arise when writers choose to publish their works under a pen name. Some of these challenges that arise are: choosing a pen name, registering copyrights when using a pen name, entering into publishing agreements, protecting the pen name itself, and maintaining the legality of transactions.
Choosing the Pseudonym
Before a writer decides to publish under a pseudonym, it is necessary to determine the purpose for which the writer wants a pseudonym. For instance, for purposes of concealing gender or diversifying genres, altering portions of his/her real name may be sufficient. For instance, the writer may choose to initialize his/her first and middle names, like JK Rowling did. Thus, while it may be enough of a departure from the real name, it may pose far fewer legal challenges in most countries. However, for a writer who wishes to write about real-life experiences and not reveal his/her identity, such a diminution may prove insufficient. In such cases, the writer may have to choose on a pseudonym which is entirely unconnected to his/her real name, and will then have to determine how to go about doing so.
While choosing a pseudonym, a writer will first have to ensure that the intended pseudonym is not being used by another writer, and is not the real or assumed name of any famous person, or the name of any well-known character in a work of fiction. The “work of fiction” sphere here, unfortunately, is quite wide, and is not limited to literary works. For instance, a writer cannot use as a pseudonym the name of a main character in a movie, television series, radio talk show or a theater performance, or the assumed name of a sportsperson.
Although it might seem like this unreasonably narrows the choices available to a writer, the writer could begin the process by making a list of possible pseudonyms, and then running them through a few trademark databases, a database of registered pseudonyms, and finally conducting a Google search. Since most writers trademark their pseudonyms and the names of their main characters, it is important for the writer to ensure that the chosen pseudonym does not run afoul of trademark law, as a trademark registration prevents the use of not only the exact trademark, but also variations which may be confusingly similar to the intended audience.
A simple tip to avoid trademark infringement liability to some extent is to not use a name which sounds very similar to an existing trademark of another writer or publisher, or is merely spelled differently, or is a common abbreviation or long form of such a name. For instance, Robert and Bob, Marcus and Marc, or Rajesh and Raj, with the same surname as another writer.
However, publishers may want different writers to maintain a common portion of a pseudonym within a genre, especially if the same publisher is publishing the two writers. For instance, if the first book has been written under the pseudonym Louis E. Black, the publisher may want the next book under the pseudonym Lisa E. Black. This allows the publisher to unify as well as distinguish the writers, and the publisher may register the trademark E. Black for books in that genre.
Registering Copyright Using the Pseudonym
Although the Copyright Act does not require writers to register works using their real names, the term of copyright is longer for a work registered in the writer’s real name. The term of copyright for a work registered under a pseudonym is 60 years from the date of registration, because it is impossible to accurately ascertain when the writer has passed away. If the writer’s real name is revealed before the end of the 60-year term, the work will be protected for the usual term, i.e. for the writer’s life and then for 60 years after his/her death. Thus, writers may register the copyright in their real name, and enter the pseudonym they want to use as the “name of author” in the copyright registration. Using a pseudonym does not affect the moral or economic rights granted to the writer under copyright law.
Writers may register the copyright in their own name to avoid ownership issues arising later, and to minimize disputes when entering into publishing agreements.
Executing Agreements with Publishers
As the pseudonym is not a legal name, the writer is required to execute all agreements and other legal instruments in his/her own name. A writer may sign two kinds of agreements with a publisher:
- An agreement ‘commissioning’ the writer to write a book or other literary works, in which case all rights in the work, except the moral rights, are assigned to the publisher.
- An agreement in which the writer has already written the book, but requires the publisher to publish and distribute the book, and thus grants the publisher a license to make and distribute copies of the book.
In the first type of agreement, it is more likely that the publisher has created the pseudonym or that the writer who created the pseudonym has assigned all rights in the pseudonym to the publisher. Such an assignment would allow the publisher to continue using the pseudonym even after the original writer has stopped writing that book series or genre. This is more commonly seen when large publishing houses and less-known writers are involved, and allows limited rights to the writer to use the pseudonym.
In the second type of agreement, the writer owns all rights in the pseudonym, and grants the publisher a license to use the pseudonym for publishing and promoting the book. This is common in self-publishing, on-demand publishing, and cases where the writer is already well-known but is working with a new or small publisher.
All publishing agreements usually contain provisions allowing the publisher to carry out promotional activities and merchandising using the pseudonym, and requiring the writer to participate in these activities. These agreements also contain specific provisions stating how the writer will be identified in the book and in activities related to the book which are undertaken by the publisher. Provisions requiring confidentiality regarding the identity of the writer until the book is published are commonly seen in these agreements.
Even if the writer has created the pseudonym and registered it in his/her own name, it does not allow the writer to assume that identity for legal purposes. Thus, the writer may create a legal entity (a corporation or trust or partnership firm) named after the pseudonym, but has to execute all applications to create the entity in his/her own name. Similarly, all royalty payments must be made in the name of the writer himself/herself, or in the name of the entity through which the writer deals with publishers.
Protecting the Pseudonym
Copyright law does not protect short phrases and names, as they are too short to qualify as literary works. Further, registering a copyright in the book is insufficient to prevent unauthorized use by third parties of the pseudonym or the titles of the book and the series. Thus, a writer or publisher wishing to protect a pseudonym from unauthorized use by a third party may apply for a trademark in the pseudonym. Although trademark registration is not necessary to establish a right in the pseudonym, a registered trademark is easier to enforce. Further, publishers prefer that the pseudonym be registered as a trademark in case they need to commission other writers to write under the same name, or if they want to allow marketing and merchandising using the pseudonym. Publishers also register various domain names which include the pseudonym or its dominant part, so as to prevent cybersquatting. For instance, in the E. Black example used earlier, the publisher may create the website eblackmysteries.com to sell and promote books of the mystery genre written under the E. Black pseudonym.
This post is authored by Ashwini Arun (Associate, BananaIP Counsels).