Copyright and the pen name

Next in an occasional series on copyright — the nom de plume

She writes as Lisa / Smallest Leaf. She always has. But when the time came to branch out beyond her well-known genealogy blogs to a QuickGuide on Croatian Genealogy, she stopped to think. How, she wondered, would the use of a “pen name” affect her copyright to her work?

And so, reader Lisa / Smallest Leaf, asks:

I’m thinking of using my alias on this little publication mainly because of name recognition (although I also like keeping it private). Is the use of a “pen name” an issue with regard to copyright? Can I place “©2012, copyright Lisa / Smallest Leaf. All rights reserved.” at the bottom of the publication and have it mean anything since I don’t legally own the name “Lisa / Smallest Leaf?”

Fortunately, the answer is an unqualified yes. There’s no legal reason why a writer can’t use a pen name — a pseudonym — and still get copyright protection for everything she writes. It may have a small effect on the copyright term (how long the copyright lasts), and everyone who writes for pay should register the for-pay works with the U.S. Copyright Office and probably under his or her real name. But those are the only real considerations.

Here’s the deal:

Copyright protects whatever you create — whether it’s something you write, a painting you paint, an architectural drawing, a photograph. As the U.S. Copyright Office explains, it “protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.”1

And the protection you get is automatic: you don’t have to use the copyright symbol, or a date, or say anything about the rights that are reserved. All of those things are now automatic, and they exist from the moment that your work is put into some tangible form.2 It’s still a good idea to include that information, though, since it serves to put everybody who sees the work on notice that the work is protected by copyright — no copyright infringer can ever claim he or she didn’t know the work was copyrighted.3

Nothing in the copyright statute, 17 U.S.C. § 101 and following, says anything about using your real name when you create the work. In fact, the statute specifically allows the use of a pseudonym. It defines a “pseudonymous work” as a work on the copies … of which the author is identified under a fictitious name.4 It has a specific provision for how long a work is protected if it’s written anonymously or under a pseudonym.5 It has special provisions for registering a copyright if it’s under a pseudonym.6 It even provides a fee structure if you decide you want to identify yourself later.7

The use of pen names is so common that the Copyright Office has a separate fact sheet about pseudonyms:

An author of a copyrighted work can use a pseudonym or pen name. A work is pseudonymous if the author is identified on copies or phonorecords of the work by a fictitious name. Nicknames and other diminutive forms of legal names are not considered fictitious. Copyright does not protect pseudonyms or other names.

If you write under a pseudonym but want to be identified by your legal name in the Copyright Office’s records, give your legal name and your pseudonym on your application for copyright registration. Check “pseudonymous” on the application if the author is identified on copies of the work only under a fictitious name and if the work is not made for hire. Give the pseudonym where indicated.

If you write under a pseudonym and do not want to have your identity revealed in the Copyright Office’s records, give your pseudonym and identify it as such on your application. You can leave blank the space for the name of the author. If an author’s name is given, it will become part of the Office’s online public records, which are accessible by Internet. The information cannot later be removed from the public records. You must identify your citizenship or domicile.

In no case should you omit the name of the copyright claimant. You can use a pseudonym for the claimant name. But be aware that if a copyright is held under a fictitious name, business dealings involving the copyrighted property may raise questions about its ownership. Consult an attorney for legal advice on this matter.

Works distributed under a pseudonym enjoy a term of copyright protection that is the earlier of 95 years from publication of the work or 120 years from its creation. However, if the author’s identity is revealed in the registration records of the Copyright Office, including in any other registrations made before that term has expired, the term then becomes the author’s life plus 70 years.8

Now if you read that carefully, there are a bunch of “gotchas” in that fact sheet to think about:

     • First, the copyright doesn’t protect the pen name itself. You can’t copyright a name — or, in fact, any words, phrases, symbols, or designs. If you want that kind of protection, you’re looking at trademark, not copyright.9

     • If you don’t use your real name in registering the copyright, you may run into trouble down the road proving you own the copyright. That shouldn’t be a problem for Lisa / Smallest Leaf, since her identity is known to her publisher. But keep it in mind if you’re planning on using a pseudonym for some self-published work.

     • And the copyright term changes if you use a pseudonym. Usually, copyright lasts for the life of the author plus 70 years. If you publish something at age 30, and you live to age 90, you’d have a total of 130 years of protection (the 60 years of your life after the work was published and 70 years after your death). If you use a pseudonym, it’s 95 years from publication, so you’d lose some years. That may not be a consideration for most of us, and you can get around it by registering the copyright.

True, registration isn’t required. But — like putting the notice on the work — it’s a good idea. It isn’t terribly expensive — right now it’s $35 to file online10 — but it makes a world of difference if you ever need to go after a copyright infringer. It’s proof that you’re the one who created the work, you can’t sue for infringement if you don’t register, you can’t get statutory damages or attorney’s fees if you don’t register11 — and you can register under your own name, and get back the years you might lose by publishing with a pseudonym.

So go ahead and use that pen name if you’d like.

And by the way if you have Croatian ancestors and want a copy of the Croatian Genealogy QuickGuide, you can check it out here — or get more information on Lisa / Smallest Leaf’s blog.


 
SOURCES

Image: Open Clip Art Library (modified)

  1. U.S. Copyright Office, “FAQs: What does copyright protect?,” (http://www.copyright.gov : accessed 1 Jan 2013).
  2. Ibid., “When is my work protected?
  3. U.S. Copyright Office, “Circular 1: Copyright Basics,” PDF version at p. 4 (http://www.copyright.gov : accessed 1 Jan 2013).
  4. 17 U.S.C. § 101.
  5. 17 U.S.C. § 302(c).
  6. 17 U.S.C. § 409.
  7. 17 U.S.C. § 708.
  8. U.S. Copyright Office, “Pseudonyms,” (http://www.copyright.gov : accessed 1 Jan 2013).
  9. U.S. Copyright Office, “FAQs: How is a copyright different from a patent or a trademark?,” (http://www.copyright.gov : accessed 1 Jan 2013).
  10. Ibid., “FAQs: What is the registration fee?
  11. U.S. Copyright Office, “Circular 1: Copyright Basics,” PDF version at p. 7.
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14 Responses to Copyright and the pen name

  1. Ralph Shumaker says:

    Hello, Judy. I love your blog! Thanks for sharing. I’m a CPA (Certified Public Accountant) and would advise Lisa to also consider obtaining an LLC (Limited Liability Company) for the name if her state is anything like Missouri in registering ficticious names. Then, from what I understand, no one can start using the name or operate a business under that name. Again, it is a good idea to consult an attorney about this.

    • Judy G. Russell says:

      Thanks for the kind words, Ralph! The LLC is a good idea, but may be overkill depending on the laws of her state (some states are VERY expensive for the LLC). Another option is securing service mark / trademark protection on the business name. There’s an excellent article on trademarks in the brand-new APG Quarterly, written by a colleague of mine from Rutgers Law School, John Kettle.

  2. Judy provides solid advice regarding copyright but there is more to consider when you are publishing or stepping out into the world of business.

    I have seen over and over many people who engage on social media behind a pseudonym. I think many do it for privacy reasons or fear that social media can be a reckless place. Just as often, as individuals increase their confidence or become more active within a community, they switch their pseudonym to their real name.

    Very few people actually operate professionally and successfully under a pen name. Dear Myrtle is the only one who comes to mind. Operating under a pen name requires full commitment and even then can get confusing at times.

    The other issue is that you must choose your pen name carefully. When you engage with clients, readers or colleagues you run the risk of people not taking you seriously when you don’t use your real name (not the case with Dear Myrtle which is a fully branded and well respected pen name).

    There is a sense of trust that is built in relationships by using your first and last name and a confidence that says I stand by my work. There is a hint of lack of commitment by not doing so.

    I would evaluate fairly soon how much you intend to engage audiences and readers as a public figure (that is what you become when you publish). Determine how more you intend to publish. Will you consider public speaking? How will your audience respond to your introduction under your current pen name?

    It will be easier for you to transition to your real name now than it would be to publish more over the next few years and then decide you want to switch to your real name.

    Food for thought.

    Marian

  3. Judy, I guess I’m misinterpreting “the life of the author plus 70 years.” If she lives to age 90, why then doesn’t the 70-year clock start at age 90?

    • Judy G. Russell says:

      The clock STARTS (copyright protection begins) at the time the work is created, so it starts in my example when the author is 30 and publishes the item. If she writes it under a pseudonym and never gets her real name associated with it, the clock STOPS (copyright protection ends) 95 years later, even though that’s only 35 years after the hypothetical author’s death. If her real name is associated with it, then the clock keeps running and doesn’t stop until 70 years after her death — an extra 35 years of protection.

  4. Thanks again, Judy, for your detailed answer to my question. Your blog is a valuable resource for genealogists like myself, not to mention always great reading!

  5. Celia Lewis says:

    Lisa / Smallest Leaf could begin right now to add her name to her blog and all writings … Real Name “writing as Lisa / Smallest Leaf” or some such phrase to begin to let her audience know the whole name and associate it with her blog. It’s not as if she’s writing erotic fiction for instance, it’s genealogy! Thanks for the clear details, Judy.

    • Judy G. Russell says:

      That’s certainly an option, Celia, but Lisa / Smallest Leaf may have other competing reasons why she likes doing it the way she’s doing it now!

  6. Keith Bouldin says:

    While reading your post and the comments I kept thinking of fiction authors. It seems to me that many well known authors are known by their legal name, but it turns out they often wrote under a pen name or sometimes several pen names early in their career.

    I wonder now if putting that information out there is not just promoting the early works of the author, but also establishing ownership of those works written under the pen name.

    Thanks for another great post Judy

    • Judy G. Russell says:

      That may explain some of it, Keith, but again: for books with regular publishers, the publisher has knowledge of the identity of the author and can support an ownership claim. It’s the self-published author who’s most at risk on that score.

  7. R. Babyak says:

    In regards to the comment that self-published authors put themselves at risk for proving authorship if they register copyright with pseudonym:

    I am guessing this would depend on the method used to self-publish. In the case of Amazon’s two self-publishing platforms, Amazon lets you publish under a pseudonym, but requires that you give them your actual tax ID because they file royalty reports to the IRS. So I would assume then that Amazon records linking your tax ID to your pseudonym would solve the problem of proving authorship in a legal case. Wouldn’t it?

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